Neil Gorsuch on Chevron Doctrine — And How it could hurt Trump
Feb 17, 2017 03:43 PM EST
Neil Gorsuch on Chevron doctrine which is the existing and prevailing legal doctrine has a big role on his nomination as Associate Justice replacing Judge Antonin Scalia. Writing about narrowing this pro-agency doctrine enticed President Donald Trump for his nomination. It would help Trump's pledge to dramatically scale back the number of federal regulations on the book.
According to Buzz Feed, whatever Gorsuch's influence can do with the doctrine, executive and judiciary will be most affected. If it would be weakened then agencies would likely be dependent on the court's interpretation of a law at issue. Otherwise, they should convince judges that they have a better idea.
If it would stay the same then just like what is being practiced today, courts should defer to an agency's interpretation of a law unless it's unreasonable. But with this doctrine, even if the judges have come up with different interpretation they would still defer from agency's interpretation. For the executive, either of the two could affect the highest position which is the Presidency of Trump.
Chevron was the name given to a legal doctrine after a 1984 Supreme Court opinion. There are two steps the Supreme Court has laid out for how courts should handle a challenge in connection with how an agency interprets a federal law. One, Judges will decide whether the law at issue is ambiguous or clear. If it is ambiguous, they move to step two. Two, Judges will decide if the interpretation of the agency of the law at issue is reasonable. In Chevron doctrine, courts should still defer to the agency even if the judges come up with a different conclusion. The idea behind this doctrine is that agencies are much effective with their own regulations because it belongs to their expertise.
This court's deference to agencies would help the President to carry out his own policy through action and regulation of the agency. On the other hand, it would also help Presidents to deactivate present regulations. That is why Gorsuch's reining the court would also hurt Trump in some way. Since decreasing agency powers would mean decreasing the President's power to carry out his own policy.
Ash Bhagwat, a professor and administrative law expert at University of California, Davis School of Law said that majority of current justices are unlikely to support the complete reversal of Chevron. But at least Gorsuch would weaken it. The President's strength in the Chevron doctrine can be best manifested even today as Trump tried to replace Obama-era regulations. Also, in the Reagan administration tried to loosen Carter-era environment regulations. If something like these would happen and reached the Supreme Court with Gorsuch, justices would likely to reconsider the scope of Chevron.
Reversing Chevron and decreasing the power of agencies are the mainly conservative idea. Last month the House passed the Regulatory Accountability Act. This would get rid of Chevron deference as well as another doctrine known as Auer, which calls for courts to give deference to agencies in interpreting their own regulations and these were backed by Republicans in the Congress.
Gorsuch wrote against Chevron several times. In October 2015, he wrote that a court decision which has been overruled by agency decision could only be forward-looking. People should rely on whatever law is at a particular moment in time. As reported by Vox, Gorsuch is a widely acclaimed jurist, a favorite of conservatives and libertarians but also very respected by liberal colleagues. He's exactly the kind of elite, educated figure who's traditionally made it onto the Court. He probably could do something about Chevron.