Gorsuch Appears Deeply Concerned With Growth Of Agency Power

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Kevin Daley Supreme Court correspondent
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Judge Neil Gorsuch, President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court, appears intensely concerned about the sprawling administrative state, the network of agencies and commissions tasked by Congress with the implementation and enforcement of federal law.

Writing at the Online Library of Law and Liberty, professor Michael Greve of George Mason University School of Law frames the issue in this way: “The hallmark of the administrative state is a power once known as ‘prerogative,'” he writes, “that is, the power to make binding rules without law, outside the law, or against the law, exercised by someone other than an elected legislature.”

Some of the most aggressive policy initiatives of recent administrations have been undertaken by the permanent bureaucratic class at the behest of the president, without congressional authorization. The Environmental Protection Agency’s clean power plan — which has engaged nearly every state in the union in litigation concerning its lawfulness — was the product of agency process, and not of congressional mandate. Similarly, the Obama administration’s directive requiring public schools to allow trans-students to use the bathroom corresponding with their gender identity was promulgated by an agency.

In a concurring opinion written in August, 2016, Judge Gorsuch wrote a thorough repudiation of perhaps the most important doctrine in the legal architecture supporting the administrative state, called the Chevron doctrine. Chevron requires courts to submit to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. Gorsuch’s opinion became something of a cause celebre among critics of Chevron, and among court-watchers for its easy but elegant prose style.

“Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism,” Alison Frankel of Reuters wrote at the time.

“There’s an elephant in the room with us today,” Gorsuch writes. “We have studiously attempted to work our way around it and even left it unremarked. But the 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. Maybe the time has come to face the behemoth.”

Elsewhere in the concurrence, Gorsuch calls Chevron, “no less than a judge-made doctrine for the abdication of the judicial duty,” which “certainly seems to have added prodigious new powers to an already titanic administrative state.”

Gorsuch is not alone in his skepticism of the Chevron doctrine. The House of Representatives is currently considering the Separation of Powers Restoration Act, legislation which would repeal the Chevron doctrine.

“This bill modifies the scope of judicial review of agency actions to authorize courts reviewing agency actions to decide de novo (without giving deference to the agency’s interpretation) all relevant questions of law, including the interpretation of: (1) constitutional and statutory provisions, and (2) rules made by agencies,” its summary says.

It’s unclear how many of the high court’s justices share his sympathies. Though the Chief Justice and Justice Samuel Alito have expressed misgivings about the doctrine, the Court has avoided revisiting Chevron and its progeny in recent years.

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