On Neil Gorsuch, Part I

Posted by on 1 February 2017
We think we’re most impressed with Gorsuch’s skepticism toward the “Chevron two-step” or “Chevron deference” established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron is perhaps the least-sexy case with the biggest impact on your life; few non-lawyers have even heard of it, and yet it grants tremendous power to the government over so many areas of our lives.In Chevron, the High Court held that if Congress’s intent (as expressed in statute) was ambiguous, then any interpretation made up by an administrative agency must be given deference unless that interpretation is clearly at odd with the statute. In fact, an administrative agency can even change its interpretation later, and so long as the new interpretation is “based on a permissible construction of the statute,” the new interpretation gets as much deference as the one it replaced.

Why is that such a big deal? Because so many areas of our lives are overseen by administrative agencies. We fly airplanes; we’re subject to the whims of the FAA (which is extending its reach into flying toys). Ever watch TV or listen to the radio? The FCC governs what you can see and hear. Ever eat or drink anything? The FDA is watching (just try to get raw milk these days, or take an unapproved drug). Your gasoline is controlled by the EPA, as is your showerhead (at least until you “recalibrate” the flow restrictor with a large drill bit…or so we’ve heard). Have you noticed that cars keep getting heavier and heavier (making it harder to get decent fuel economy, resulting in expensive pollution control measures that need more frequent service)? That’d be the NHTSA. Want to see more than two candidates at the presidential debates?  That’s partially up to the FEC, which is being sued right now, and standing on Chevron deference.  It’s almost impossible to go even a single day without being touched by regulations and interpretations set down by faceless, unaccountable bureaucrats who, under Chevron, are entitled to have whatever they say taken as the final word unless it explicitly conflicts with a statute.

If Gorsuch holds with his history on this issue, he has the opportunity to do some real good. In fact, the Court has signaled that it would be willing to reevaluate it’s position and possibly overturn Chevron, most recently in King v. Burwell, 576 U.S. ___ (2015), the case which upheld the constitutionality of Obamacare.  It’s worth nothing that CJ Roberts, in writing the Court’s opinion chose to contort the clear wording of the statute (see Justice Scalia’s dissent for a detailed explanation¹) to reach a decision rather than rely upon the IRS’s interpretation of the rule; the purpose of that was to sidestep Chevron so that a future change in interpretation by the IRS (inspired, perhaps, by a new administration) wouldn’t have any effect upon the law.

So…yeah, this is a big deal. Overruling Chevron could be a huge change, affecting all of our lives for decades to come.

1.  Link goes to slip opinion, dissent starts on page 27 of the PDF

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