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Why We’ll Hear About Gorsuch’s Controversial Take on ‘Chevron Doctrine’


One of the issues we’re bound to hear about during Judge Neil Gorsuch’s confirmation hearing is the “Chevron Doctrine” or “Chevron Deference” and his controversial take on it. Administrative law doesn’t often get its chance on the front pages, so this is likely the first time you’ve even heard the word “Chevron” refer to something other than a gas station or fashion trend.

First, some basics about administrative law in general. Administrative Agencies (like the EPA, the FDA, the IRS, or any other alphabet-soup government agency) are part of the executive branch of government, and as such, are charged with enforcing laws. Congress uses its legislative power to draft statutes creating and empowering these agencies, and then delegates some of its lawmaking authority to the agencies themselves for further rule-making. This system makes a great deal of sense, given that members of Congress are suited to handle the broad strokes, but certainly aren’t equipped to take charge of highly-technical agency-specific matters. Generally speaking, the specialists at the EPA are the best choice for drafting environmental rules, and those at the OSHA know the specifics of workplace safety, and so on. Of course, these regulations are not simply drafted by agency directors in a quick email. Federal administrative regulations are rules adopted by our regulatory agencies as the result of a lengthy legislative process that involves research, open discussion and hearings.

An issue arises when there is confusion over the meaning of a Congressionally-adopted statute that is being administered by a federal agency. Usually, courts and courts alone are in the interpretation business; but since 1984, when the Supreme Court decided Chevron U.S.A. v. Natural Resources Defense Council, the agencies themselves are entitled to have courts “defer to reasonable interpretations of ambiguous statutes.” Basically, unless the interpretation directly conflicts with something Congress has specified, the agencies probably know best what they laws they’re administering mean.

Writing for the majority, Justice John Paul Stevens stated:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Separation-of-powers watchdogs dislike this deference (known as “Chevron Deference”), because it weakens the judiciary at the expense of executive. Proponents of Chevron Deference argue that it is an efficient and practical way to ensure good statutory interpretation by those who are in a position to know best.

Judge Gorsuch has been clear in his distaste for Chevron Deference, writing, “We managed to live with the administrative state before Chevron. We could do it again.” As Eric Citron, contributor for SCOTUSblog put it, “we have the odd situation that Gorsuch is viewed as a revolutionary thinker – as taking up arms against a rule at the heart of modern administrative law – by advocating for an understanding of American government we all (should have) learned in high-school civics.”

Judge Gorsuch’s hate-hate relationship with the Chevron Doctrine has an interesting underside, though.  Critically, the 10th Circuit cases in which Gorsuch argued against Chevron deference did not involve highly technical agency-specific statutes. Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch dealt with the fundamental fairness of the Board of Immigration Appeals having retroactively changed immigration rules. United States v. Nichols also dealt with the fairness of retroactive rules, that time with a criminal statute, and the attorney general as the administrator. By contrast, the Chevron case itself dealt with the EPA’s authority to interpret the specific language of the Clean Air Act and to define what really counted as “new or modified major stationary sources of air pollution.” Regardless of one’s position on the correct limits for agency authority, it’s tough to argue that questions of fundamental fairness and retroactive legislation are functionally the same as subject-specific technical definitions. So while Gorsuch’s preference for the role of judges over that of agency directors may well have made sense in Gutierrez-Brizuela, De Niz Robles, and Nichols, we’re definitely dealing with apples and oranges when it comes to the usual way Chevron deference operates. How a Justice Gorsuch would argue for extension of his argument to a more typical Chevron case remains to be seen.

More curious, though, is Neil Gorsuch’s personal connection to the Chevron Doctrine. In 1984, when the Chevron case itself was decided, the EPA definition in question had been adopted by none other than Anne M. Gorsuch – Neil Gorsuch’s mother. Anne Gorsuch, the first female administrator of the EPA, was appointed by President Ronald Reagan. During her 22-month tenure at the agency, she substantially reduced the agency’s budget, relaxed Clean Air Act regulations, and facilitated pesticide use. In 1982, Congress investigated the EPA’s handling of the $1.6 billion toxic waste Superfund and demanded records from Mrs. Gorsuch. She refused, and became the first agency director in U.S. history to be cited for contempt of Congress. That same year, Anne Gorsuch and attorney David Gorsuch (Neil’s father) divorced.

What does Gorsuch’s family connection to the Chevron Doctrine mean? That’s unclear at best. But there’s a good chance that the interpretation of administrative regulations and the authority of the EPA were on Neil Gorsuch’s radar even during his teen years.  His mother’s downfall at the EPA, his parents’ simultaneous divorce, and the Supreme Court’s subsequent ruling in the Chevron case may well have laid the groundwork for Judge Gorsuch’s particular interest in this aspect of administrative law.  As this week’s hearings begin, we’ll keep you posted on how Gorsuch’s relationship with all things Chevron may factor in to his confirmation to fill Justice Scalia’s seat.



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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos