[RD] Gorsuch and Chevron

[BvBPL]

Neil Gorsuch, President Trump’s pick for the Supreme Court, is no fan of Chevron. Chevron, decided thirty-three years ago, established as law that agencies have broad ability to interpret the laws that require the agencies to take action, and that the courts can only overrule such interpretations where those interpretations are unreasonable.

Overturning or weakening Chevron would result in a significant shift in interpretative power from the agencies back to the courts. Which might be good for those of us who feel the courts are better suited to interpret the law. But it also puts a big burden on the courts to interpret specialized areas of law, areas that a court may not have the resources to examine fully.

A change in the deference to agency interpretation might also affect shifts in political administration. With a new administration comes new interpretations of law that are filter down through the agencies. In a post-Chevron world, agencies heads in a new administration would be significantly less able to alter established interpretations of statute.

Weakening the Chevron doctrine could also result in disparate regulatory understandings across different areas. Where under Chevron a federal agency can promulgate a unitary interpretation of statute nationwide, giving the courts greater power to interpret administrative law will likely result in the courts of some areas ruling one way and the courts of another ruling in another. It seems unlikely that the Supreme Court, or even the Circuit Courts, would be able or willing to resolve all of the resulting conflicts of law.

What do you think of overturning Chevron or substantially changing the Chevron doctrine?

Gorsuch also disapproves of the Quill nexus approach to sales tax, the dormant commerce clause, and substantive due process.

 

[Perfection]

Hell if I know

 

[dutchfire]

I think this would be bad for judicial efficiency.

 

[Quintillus]

I would have to research it more to make an informed opinion. It's not necessarily an easy question between the harm that can be caused by oscillating agency policies as administrations shift, and the need for flexibility. And that's purely from a policy perspective, without considering the legal basis for deciding the case one way or another.

If you intend the thread to discuss Gorsuch, and Chevron, as opposed to only (Gorsuch and Chevron), my opinion based on a few hours of research tonight is that he is a qualified judge, and a solid choice, and likely should be confirmed.

However, in light of the dishonorable blocking of the confirmation hearing of Merrick Garland by congressional Republicans last year, I will have no qualms with Democrats similarly obstructing the nomination.

Judicial nominations should be based on merits, not politics or ideology (so long as it does not affect their merits or impartiality). But Republicans poisoned the well last year, so I will be giving any Democratic representatives a free pass if they do the same this year, or in the 4th year of Trump's term, even though I normally would not. On the other hand, since he is qualified, I'll also give them a free hand if they approve him.

Perhaps also worth noting is that in general I agree with the originalist interpretation that Gorsuch is associated with. In my opinion, the Constitution was written to serve as a framework that established the fundamental laws and structure of the government of the country, and those fundamentals were chosen for specific reasons, some spelled out in it, but others described in more detail in other documents, such as the Federalist Papers. The articles were not meant to be interpreted as most convenient to the government or populace of any future time, but based on those reasons that factored into how the authors wrote it, which were specifically attempting to set up a stable governing framework that would last well into the future. The ratification process was provided such that, if in time it became evident that certain articles of it did not perform as intended, or additional articles were required, they could be added.

 

[Berzerker]

I'm tired of Congress using the interstate commerce clause as an excuse to regulate whatever they want, including intrastate and non-commerce

if he supports Wickard vs Filburn he shouldn't be a judge

 

[Quintillus]

I'm tired of Congress using the interstate commerce clause as an excuse to regulate whatever they want, including intrastate and non-commerce

if he supports Wickard vs Filburn he shouldn't be a judge

The Interstate Commerce Clause is indeed one of the ones that, IMO, is most often interpreted in a matter inconsistent with the meaning of the Constitution. Is it a little bit vestigial now that the United States is typically one country, rather than a collection of states (in which case I'd have written "the United States are one country")? Yes, but that doesn't mean we aren't a federal system where certain aspects of governance should be left to the status. I would argue a better solution would be an amendment granting power over certain additional areas to the federal government (perhaps in addition to, rather than instead of to, the states) - areas that were seen as less important in the late 1700s, regarding things such as regulating healthcare, food safety, or the environment - and to interpret the Interstate Commerce Clause more as it was originally intended.

While I wouldn't consider any single case to be a dealbreaker, just as I don't think any single issue should be a dealbreaker in a legislative candidate, I likely would side with Filburn in Wickard vs Filburn. Deciding to grow certain crops and selling them locally hardly seems like interstate commerce.

 

[Timsup2nothin]

I think you are leaving out the probable outcome that makes this so attractive to Republicans. By eliminating the agencies latitude for interpretation it makes it far more likely that the agency will in fact do nothing at all. "Our interpretation is reasonable, you really can't dump toxic waste here" can and will be met with "Unless the courts back you up on that I believe it is unreasonable." Don't forget that the resulting lawsuit has to be litigated on both sides, and while it is easy to say that a Federal Agency can certainly afford more and better lawyers than I can, when the litigation is against a major corporation there is a limit to how many suits the agency can afford. Agents that interpret conscientiously might find themselves out of their jobs. Faced with the choice of being "the inspector that got us into that lawsuit" or just saying nothing and moving on another day closer to their pension, how many inspectors are going out on the limb?

 

[Cutlass]

Sounds like Gorsuch is in the mold of Roberts. Meaning that is core judicial philosophy is to support crony capitalism at the expense of a functioning economy, government, and society.

The core problem of using the courts for the purposes of regulation is that their ability to do so is extraordinarily weak. In fact, modern regulatory agencies as we have them would never have existed in the first place if the courts had the ability to do the job. The rise of the regulatory agency is in effect the result of the inability of the courts to do the job. So taking the powers from the regulatory agencies and giving them to the courts is intentionally an act of stripping the legislative process of the ability to protect persons and property. Because the regulatory process is a creation, and a creature, of the legislative process.

So what is the purpose of regulation? The majority of regulation is the protections of persons and property from the aggressions of others. This, ultimately, is what the Roberts judicial philosophy is intended to destroy. And as a side effect of destroying the protection of property, it makes property itself a meaningless concept.

Crony capitalism is an assault on capitalism itself. Because it is an assault on the private ownership of property itself. This is why conservatives support it so strongly. In their worldview the rich, and everyone else, should not be expected to live by the same rules. The rich should be able to do as they please. Everyone else should be expected to do as they are told.

 

[Camikaze]

It boggles my mind how that the US can have the Chevron doctrine, whilst simultaneously claiming to adhere to a strong separation of powers. I understand I'm heavily influenced by my own context in thinking this, but surely ensuring judicial supremacy in interpreting the legislature's words is about as fundamental a protection against executive overreach as you can get. (Chevron has been rejected as constitutionally impossible in Australia, for this very reason).

 

[BvBPL]

You have to bear in mind that the Chevron decision explicitly stated that Congress could override it. Chevron gave a lot of potential power to the legislature, which is didn’t really use, and a lot of power by default to the agencies.

 

[metalhead]

I don't think people fully grasp that the transfer of power from the legislative branch to the executive has largely been the result of the legislative branch voluntarily, and in some cases proactively, ceding that power. That's why it kills me whenever anyone in a majority party in Congress starts complaining about the executive branch being too powerful.

 

[Camikaze]

Saying that the legislature can always override the executive interpretation seems to be the same species of argument as the old chestnut that judicial interpretations should not be evolutionary because there's always a mechanism for constitutional amendment.

The executive overreach which Chevron assists may well be abetted by the legislature, but I'm not sure how that really changes things. It remains the judiciary's job to ensure the executive is bound by what the legislature has actually said, not what the executive thinks the legislature has said. If the legislature wishes to give the executive specific power, the principle of legality requires that they be unambiguous about it.