Gorsuch and the Chevron Deference

Lindsey Mattila (CMC ’17)

In 1984, the Supreme Court established one of the most influential principles in administrative law in the Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. A few years prior, Congress passed the Clean Air Act, requiring states that had not yet met the lower pollution rate to use a permit system for more intensive regulation. The Environmental Protection Agency (EPA) expanded on the Act by implementing a regulation, allowing states to group together their various pollution-emitting factories, which resulted in a more lenient policy. Environmental watchdogs were upset that the EPA’s additional regulation was a conservative interpretation of the Clean Air Act, and took the issue to court. The Supreme Court ruled in favor of Chevron, which implied that when Congress or the White House pass legislation that is vague or contradictory, it is within the jurisdiction of governmental agencies to implement the law by their own reasonable interpretation. This has become known as the Chevron deference. Whether intentional or not, this verdict set precedent for how much deference the judicial branch should give to federal agencies.

Originally, the verdict protected a conservative EPA under Reagan’s administration. Now, the verdict is a staunch protector of more progressive federal agencies. The deference typically favors the political leanings of the party that is in the White House since they have the right to appoint agency leaders. A representative of the Union of Concerned Scientists wrote in support of the deference that, “it allows us to actually ensure that we don’t have judges overriding scientific expertise … and substituting their own views with limited information.” Thus, this sentiment assumes that even though lawyers are experts in law, there are certain areas that require more technical expertise. In these cases, the representative argues, technical experts may be more equipped to interpret and implement the law.

In light of the many recent executive orders, this legal precedent preserves some agency autonomy over how the orders should be implemented. This is relieving for some, and infuriating for others. Supreme Court nominee, Judge Gorsuch, relates more with the latter. Gorsuch has openly stated his opposition to the ruling, and his desire to reverse the ruling if given the opportunity. He wrote about the deference, “[T]he fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Those who fall in line with Gorsuch’s logic would say that the Chevron deference makes the executive branch much stronger than it was intended to be. Furthermore, they would argue that the deference eliminates one of the last lines of defense between the president and an almost unchecked amount of power.

Even with the polarized views on the Chevron deference, it has been applied to thousands of court cases, most notably the more recent ruling on the FCC and net neutrality, and the implementation of the Affordable Care Act. Without this precedent, it will be up to the courts to say what is legal or not, and their say will be the final word. This would strip agencies of their autonomy and any power they have to influence how legislation is interpreted and applied. Giving more power to the judicial branch will be beneficial for Trump’s agenda as the Supreme Court will soon have a conservative lead when his nominee is appointed. One example could be if immigration legislation makes it to the Supreme Court, and agencies and states are disagreeing over how it should be interpreted. In this case, the newly conservative Court will have the last say, as opposed to the agencies who may have a different interpretation.

Moving forward, it will be interesting to see if the Chevron deference is dismantled by its conservative opposition, even though the legal precedent would now work in favor of more conservative causes under Trump’s administration. Furthermore, this question brings to light an interesting conflict between experts in a specific field and experts in law, and who is best fit to be interpreting and implementing legislation. If this legal precedent is dismantled, it will have real impacts on the way that legislation is interpreted and administered. The courts would gain power, and the executive branch would lose some power. However, if the courts’ and the executive branch’s political leanings are aligned, this would have little effect in the short run. This administrative change is one that would have a lasting impact beyond Trump’s presidency. Yet, this impact will remain to be seen until there is a conflict in ideology between the judicial and executive branches.


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