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08/26/2016

Judge Neil Gorsuch: Overrule Chevron
Michael Ramsey

Concurring in Gutierrez-Brizuela v. Lynch (10th Cir., Aug. 23, 2016), Judge Gorsuch argues that Chevron deference to administrative agencies is inconsistent with separation of powers:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . . .

Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . .  It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design . . . .

(Via Jonathan Adler at Volokh Conspiracy).

RELATED: At Liberty Law Blog, Christopher Walker (Ohio State): Do Judicial Deference Doctrines Actually Matter? (noting Judge Gorsuch's concurrence and also this book review by Judge Brett Kavanaugh).  Professor Walker concludes:

[E]ven these raw-number findings make it hard to argue that Chevron deference does not matter in the circuit courts. Whether or not Chevron deference should be shelved is subject to considerable debate—a debate that will no doubt continue for years. But the findings of our empirical study of Chevron in the circuit courts should put to rest the argument that deference doctrines do not matter.