Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats

Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.

And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.

A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.There were many judges on his list of 21 potential nominees who were more favorable to Chevron and yet he passed them over. This choice is not the action of someone who wants to maximize his power at all costs. Perhaps some would say that Trump was just ignorant of these details. But surely his key agents, including Steven Bannon and Reince Priebus, recognized this salient feature of Gorsuch’s record and they recommended him nonetheless. Just as Trump’s nominations suggest he is better than his off-the-cuff statements, so his nomination of Gorsuch likely suggests that his administration’s considered views on federal power are better than his impulsive tweets.

Second, the difference between Scalia and Gorsuch on Chevron reflects the changing nature of legal conservatism. Back in 1984, when it was decided, Chevron was cheered by conservatives because their greatest fear at that time was of judicial overreaching. The Warren Court, and even more relevantly the District of Columbia Circuit Court of Appeals in the 1960s and 1970s, bent statutes beyond recognition to reach left-leaning results. But conservatives have made substantial progress against such judicial lawlessness in statutory interpretation. Now they have recognized both that Chevron is in some tension with the rule of law and that the greater problem today is the power of the overweening administrative state. Chevron magnifies that power.

Finally, Gorsuch’s opposition to Chevron splits the Democratic opposition to Gorsuch. Some elements within the Democratic coalition have already signaled that his position on Chevron is cause for rejecting his elevation to the High Court. On the other hand, Democrats say they want a jurist who will stand up to President Trump. Of course, discarding Chevron facilitates opposition to the President’s agenda. Democrats must decide which takes precedence, their opposition to Trump or their enthusiasm for administrative power.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. Nancy says

    “For what it’s worth, I am more in the “mend it, don’t end it” camp when it comes to Chevron.”

    Whether one is in the, end it , or ” mend it, don’t end it”, camp when it comes to Chevron, no doubt both camps would agree that the obscene fine placed on those employers who desired to provide their employees with Health Care Insurance sans contraception coverage versus the fine placed on employers who did not provide their employees with Health Care Insurance at all, because it is such a gross violation of the principle of proportionality, can only be seen as a means to influence the recepient of said fine, those who desire to provide Health Care Insurance to their employees san contraception coverage, into violating a tenet of their Faith and/or morals.

  2. gabe says

    This is a fair piece.

    As I have argued previously, would it not be curious for a man who has had to contend with Administrative overreach during his entire professional life to later support such overreach?

    Also, good point on the “contemporaneous” reasons for supporting Chevron in the 1980’s. As they say, “Careful, you may get what you wish for”

    As times change, I wonder, do you get another wish?

  3. says

    Thank you, Professor McGinnis, for pointing this distinction about Gorsuch; and about Trump’s core skill: administration, or who to hire and who to fire.

    Of the 21 judges he considered, it seems he may have chosen the one who is most likely to help with a campaign promise I heard live in my hometown and on TV during the inaugural address: “What truly matters is not which party controls our government, but whether our government is controlled by the people.”

    Without deference, Congress would have to function. What I cannot imagine is the present two-parties and a functioning Congress.

    Moreover, I cannot imagine establishing We the Civic People of the United States—a super-majority who use the preamble to the constitution for the USA to establish public-integrity; civic morality rather than social morality; broadly-defined-civic-safety-and-security, hereafter Security.

    I can’t imagine “our government . . . controlled by the people.” Again quoting Trump’s speech, “We Will Make America Safe Again.” I hope Trump can inspire the civic people and constrain the dissidents to Security.

  4. Louis Woodhill says

    “Democrats must decide which takes precedence, their opposition to Trump or their enthusiasm for administrative power.”

    They will choose administrative power, and oppose Gorsuch. Placing power in the hands of unelected, unaccountable “experts” is the core goal of progressivism.

  5. James in Texas says

    It is not for a Justice of the SCOTUS to be for or against the President, the Congress or any other like or dislike! They have one and only one requirement, that being the Constitution and if or if not does it make the requirements of that precious document! Far to many of the Justices on the Federal level are biased for one or the other Party, group, person, state or the area covered by this court and that court! Any and all Justices that show “any Bias of any kind” should be held as unworthy of being a Judge, tried and Impeached as quickly as can be done! Their oath is taken on the principle of “Justice is Blind” and only the law can be heard! Findings should never be based on……..”Well, it depends on what Is Is”!

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