At his Senate confirmation hearing, U.S. Supreme Court nominee Neil Gorsuch was questioned about judicial independence, the Roe v. Wade abortion-rights ruling and the Chevron doctrine. This was not a trivia question to test his knowledge of case law. Chevron is the foundation bolstering federal regulations on the environment, communications and other issues. Gorsuch is a vigorous critic of Chevron, and Democrats fear that if he joins the court, he’d champion its elimination or restriction.
1. So what’s the Chevron doctrine?
Chevron U.S.A. v. Natural Resources Defense Council was 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. It arose from a dispute over language in the Clean Air Act that required "new or modified major statutory sources" of air pollution to comply with strict rules. During the presidency of Democrat Jimmy Carter, the EPA determined that the "source" could be any piece of equipment; the Republican administration of Ronald Reagan later said that "source" meant the entire plant. In its 1984 decision, the Supreme Court said that when Congress passed a law that did not have a clear meaning, courts should defer to the federal agency applying the law unless its interpretation was unreasonable. The court reasoned that experts at agencies had been trusted by Congress to make informed decisions. This has become the doctrine.
2. What did this do?
The decision set up a two-step approach, in which courts first determined whether laws were ambiguous, then decided whether the agencies’ interpretations were sound. In the decades since, courts have commonly deferred to agencies not just on the environment but in areas touched by laws such as the Federal Communications Act and the Occupational Safety and Health Act.
3. Why has Chevron become an issue now?
Gorsuch, a judge on the 10th Circuit Court of Appeals, wrote in a 2016 opinion that the Chevron doctrine allowed "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." He called Chevron a "Goliath of modern administrative law," and argued it may be time to face "the behemoth." He suggested that the judiciary -- not the executive branch -- should have the last word on the meaning of the law.
4. Why are Democrats fretting?
In recent years, as Congress passed fewer substantive laws, conservatives have chafed as courts yielded to the interpretations by Democratic President Barack 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.
5. So if Chevron is eliminated, federal regulations are, too?
No. But since Chevron gives agencies leeway to interpret confusing or muddled directives from Congress, it empowers new administrations to change direction from their predecessors. President Donald Trump has signaled he’d like to undo regulations on 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. But Gorsuch might be unlikely to give agencies a long leash to interpret statutes. 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.
6. If Gorsuch joins the court, is Chevron a goner?
Hard to say. When Chevron was first decided and Republicans were in the White House, conservatives cheered its use to remove interpretations made under Democratic administrations. Early in Antonin Scalia’s tenure on the Supreme Court, the conservative justice embraced the Chevron doctrine. During the Obama years he took a more constrained approach, and penned opinions that denied EPA deference on rules governing greenhouse gas emissions and air pollution from power plants. Gorsuch’s decisions show a far more critical view of Chevron than Scalia, the justice he would replace. Yet 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 Reference Shelf
- Text of the Supreme Court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council.
- The 2016 opinion in which Neil Gorsuch’s wrestled with the "thorny problem" of Chevron.
- In Bloomberg View, Noah Feldman said Gorsuch’s view on Chevron was "a ringing defense of judicial responsibility."
- A QuickTake on partisanship on the Supreme Court.