The Gorsuch Legal Position Liberals May Grow to Love

Critics of Supreme Court nominee Neil Gorsuch at last week’s confirmation hearing challenged him for questioning whether the justices should rethink a 33-year-old precedent: The precedent holds that judges should defer to federal agencies in interpreting the law.

That deference allowed former President Barack Obama to push the envelope in crafting new regulations, with less pushback from the courts.

“His point is not an ideological one. Either the Chevron doctrine applies or it does not.”

Now that the government is in the hands of President Donald Trump and his appointees, however, progressives might not like it nearly as much. If the administration uses its free hand under the so-called “Chevron doctrine,” liberals may come to embrace Gorsuch’s view.

“His point is not an ideological one,” said John Malcolm, director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. “Either the Chevron doctrine applies or it does not.”

The doctrine comes from a Supreme Court case decided in 1984. The justices ruled that if a statute is vague, judges should defer to any “reasonable” interpretation of federal agencies to determine how much authority they have to write new regulations. Justice John Paul Stevens’ majority opinion in Chevron v. NRDC has been cited by lower courts more than 15,000 times.

Supporters contend that judges do not have the expertise of staffers at the federal agencies and that it allows the government to be nimble and respond to new threats.

Gorsuch has gone out of his way to raise questions about the Chevron doctrine, including writing a separate concurring opinion for a case last year before the 10th U.S. Circuit Court of Appeals called Gutierrez-Brizuela v. Lynch, in which he also wrote the majority opinion.

At his hearing, witnesses and Democratic senators hammered him over the issue. Guerino Calemine, general counsel of the Communication Workers of America, cited it when discussing an unrelated case in which the judge dissented from a ruling involving a trucker who lost his job after abandoning a malfunctioning rig in freezing weather.

“Judge Gorsuch’s dissent is Exhibit A for why we should have Chevron deference, because instead of picking out a dictionary definition, [judges should] look to the agency and see how they, the experts, have figured out how this law works in the real world,” he testified.

Sen. Amy Klobuchar (D-Minn.) argued in her opening statement that “modern agency decisions include things like rules protecting public safety, requirements against lead-based paint, and clean water protections for our Great Lakes.”

Prior to the hearing, more than 100 civil rights organizations that oppose Gorsuch argued in a letter to the Senate Judiciary Committee that the judge “would relegate this vital precedent to the dustbin of history because it disfavors the corporate interests he championed as a lawyer and as a judge.”

But Malcolm of the Heritage Foundation said federal bureaucrats naturally see fewer limits on their ability to act.

“Agencies, if it were up them, would broadly interpret their authority,” he said. “Agencies pushing the envelope are not unique to Democratic administrations.”

Pat Parenteau, a professor at Vermont School of Law, agreed.

“It’s been important to every administration,” he said. “It will also be important to the Trump administration.”

Parenteau said there are many instances in which judges could interpret the law as requiring more regulation than what federal agencies have interpreted.

“Gorsuch may surprise Trump in the way that [former Supreme Court Justice David] Souter surprised George H.W. Bush,” he said. “I don’t know that this is so much a partisan issue.”

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William Buzbee, a professor at the Georgetown University Law Center, said that if the Trump administration tried to ignore climate science or change its interpretation of a statute, “The courts would have greater freedom to disagree about what the statutes mean,” without the Chevron doctrine.

But Buzbee said that overturning the Chevron doctrine probably would result in less regulation overall.

“The courts already very skeptically assess agencies on the facts and science and data,” he said. “Agencies are quite frequently rejected.”

The Judiciary Committee is expected to vote on Gorsuch’s nomination on Monday.