Trump’s Court Pick May Be Obstacle to His Anti-Regulatory Moves

  • Gorsuch criticized Chevron doctrine that empowers agencies
  • Limited view could thwart bid to overturn Obama-era rules

QuickTake: U.S. Supreme Court Nominee Neil Gorsuch

Donald Trump has vowed to rescind scores of regulations but his Supreme Court nominee may not give the president’s executive agencies wide enough berth to make those reversals. 

Appellate Judge Neil Gorsuch has been a vigorous critic of the so-called "Chevron doctrine" that gives federal agencies latitude when interpreting ambiguous laws. The Obama administration relied heavily on that 33-year-old principle to impose a host of mandates on energy, the environment and the workplace.

Neil Gorsuch

Photographer: Alex Wong/Pool via Bloomberg

Now Trump’s agencies may need the same leeway to undo them.

"It’s pretty ironic that Trump is appointing someone that is going to take power away from him," said Brian Potts, an environmental lawyer at Perkins Coie LLP. "Trump is definitely tying his hands to some extent, assuming Gorsuch does what he has done in the past."

Gorsuch, a judge on the 10th Circuit Court of Appeals, has called the Chevron doctrine a "Goliath of modern administrative law," and argued it may be time to face "the behemoth." In a concurring opinion last year, he cast Chevron as allowing "executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design."

Long Leash

If he holds to that position, Gorsuch is unlikely to be inclined to give agencies a long leash to interpret confusing or muddled directives from Congress. That could come back to constrain Trump’s regulatory moves as federal courts consider the inevitable legal challenges to his efforts to roll back Obama-era regulations. 

Just as Chevron gives agencies leeway to interpret confusing statutes, it also empowers new administrations to change direction from their predecessors -- exactly the kind of reversals Trump has signaled on regulations limiting methane leaks from oil wells, carbon dioxide emissions from power plants and water pollution. In addition to environmental rules, it could come into play with a Labor Department regulation requiring businesses to provide more overtime pay.

To be sure, Gorsuch’s critical view of Chevron deference could also aid the Trump administration. In cases in which an Obama-era regulation may have strained the bounds of legislative authority, a narrower view by Trump’s team could be bolstered by the courts. And, any of these high court decisions are still years away.

New Direction

Also, it’s notoriously difficult to predict how justices will behave once they are installed on the high court; more than one has gone on to issue rulings that disappointed past supporters. The makeup of the panel may be significantly different by the time potential litigation over Trump’s policies reaches the Supreme Court, particularly if liberal justices step down.

Still, Gorsuch’s appointment does indicate a new direction. His decisions show a far more critical view of Chevron than the justice he would replace. 

Antonin Scalia started out a vigorous champion of the Chevron doctrine. During the Obama years he took a more constrained approach, including by recently penning opinions that denied EPA deference on rules governing greenhouse gas emissions and air pollution from power plants. 

"Gorsuch’s aversion to Chevron is rather interesting in light of the otherwise striking parallels between his and Justice Scalia’s judicial philosophies," said Jason Hutt, head of Bracewell LLP’s Environmental and Natural Resources practice.

Government Power

Compared to Scalia, Gorsuch’s stance is even more limited, said Philip Wallach a senior fellow in governance studies at the Brookings Institution. Gorsuch "seems to be somebody who is much more suspicious of government power and having a deferential attitude toward the executive," he said.

The Chevron doctrine emerged from the 1984 case Chevron v. Natural Resources Defense Council, a lawsuit originally filed by the NRDC against the U.S. Environmental Protection Agency, at that time led by Anne Gorsuch, the Supreme Court nominee’s late mother.

The doctrine was cheered by conservatives when Republicans were in the White House, because it gave the Reagan and Bush administrations more room to maneuver.

But in recent years, as Congress passed fewer substantive laws, conservatives chafed as courts yielded to the interpretations by Obama’s Environmental Protection Agency in setting far-reaching rules. Republicans in Congress have made undoing Chevron one of their top anti-regulatory legislative priorities.

"Chevron deference became really important in the later part of the Obama administration because Congress hadn’t acted on a number of environmental issues in a while," said Denise Grab, a senior attorney with Institute for Policy Integrity at New York University School of Law.

Clean Air Act

For example, in the absence of legislation, the EPA used the Clean Air Act to try to rein in carbon dioxide emissions from the electricity sector. Instead of imposing specific requirements on individual power plants -- a more traditional approach -- the agency tried a novel tactic that set goals for each state. Facing challenges from 27 states, the Obama administration’s lawyers argued that its interpretation of the law should be given deference by the court.

Trump’s EPA is expected to significantly revise that rule, the Clean Power Plan. To defend that change, he’ll need to ask the courts to defer to his regulators.

"Any new rule he wants to promulgate that rolls back environmental protections or interprets the Clean Air Act or any other statute narrowly is going to be looked at anew by the courts if there’s no Chevron," Potts said.

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