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11/07/2018

Heather Elliott: Justice Gorsuch's Would-Be War on Chevron
Michael Ramsey

Heather Elliott (University of Alabama - School of Law) has posted Justice Gorsuch's Would-Be War on Chevron (21 Green Bag 2d 315 (2018)) on SSRN.  Here is the abstract:

Supreme Court decisions such as Chevron v. Natural Resources Defense Council require varying levels of deference to legal interpretations provided by administrative agencies – deference that recently appointed Justice Neil Gorsuch believes undermines the separation of powers. He has, since joining the Court in April 2017, found no vehicle for actually executing his anti-Chevron mission. This Essay examines his statement upon denial of certiorari in Scenic America v. Department of Transportation. Justice Gorsuch’s statement is telling both for Scenic America’s unsuitability as a vehicle to address the deference doctrines that he cares about and for the rhetoric he uses in discussing the case. The rhetoric he uses reveals his interest in reviving the non-delegation doctrine and his formalist approach to separation of powers, both of which bode ill for the modern administrative state.

(She writes that last line like its a bad thing...).