He sees an elephant in the room.

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Get Ready, Supreme Court Fans. Brush Up on Your Chevron Doctrine.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Confirmation hearings for Judge Neil Gorsuch are likely to feature a somewhat offbeat topic: administrative law, and particularly a key issue known as the “Chevron doctrine.” Central to environmental law and all other forms of federal regulation, the doctrine, adopted by the U.S. Supreme Court in 1984 in a case involving the Chevron oil company, says the courts should defer to agencies’ interpretations of ambiguous laws.

Dry as it may sound, the principle is in fact the subject of heated debate among scholars -- and last year, Gorsuch weighed in with a lengthy opinion proposing to abandon the prevailing approach, thus strengthening the judiciary and weakening the agencies. Democratic senators are likely to question him intensively about his views, which for the first time may make Chevron doctrine into a household word -- and a partisan flashpoint.

QuickTake U.S. Supreme Court

The origins of the doctrine aren’t especially political. The original opinion was written by Justice John Paul Stevens, then still a moderate Republican in the mode of Gerald Ford, who appointed him. (Stevens later became a liberal, one of the most outspoken on the Rehnquist court.)

Stevens’s basic reasoning was that when Congress passed a law that did not have a clear meaning, the agency charged with applying the law should have the first crack at interpreting it. This made sense against the background of the now somewhat-old-fashioned idea that agencies are politically neutral experts whom Congress trusts to make wise decisions.

Given the agency’s expertise in the subject matter, Stevens reasoned, the agency should have the authority to choose among potentially conflicting policy choices. Provided the agency’s interpretation was reasonable, the court should defer to it.

The court’s job was then twofold. First, in what came to be called step one of the Chevron doctrine, the court must determine if the law was in fact ambiguous. If it was, then at step two, the court was supposed to decide if the agency interpretation was reasonable.

Right away you can see that the idea of deference to the executive branch in interpreting the law was at odds with the traditional idea, going back to the landmark case of Marbury v. Madison, that it is “emphatically the province and duty of the judiciary to say what the law is.” By deferring to the agency, the courts were choosing not to interpret the law for themselves. A judge applying Chevron might believe that the agency’s interpretation is wrong -- but if it is nonetheless reasonable, the judge is supposed to decide the case according to the agency, not his own interpretive judgment.

Justice Antonin Scalia, whose academic expertise was administrative law, embraced the Chevron principle. In a speech he gave at Duke Law School in 1989 -- famous partly for his opening admonition that “administrative law is not for sissies” -- Scalia squarely took on the criticism that judges should have the last word on the meaning of law.

He answered that the basis for deference didn’t lie in the agency’s expertise, but in Congress’s presumed intent -- the intent to give authority to the agency. With characteristic candor, Scalia granted that in reality, Congress usually hadn’t given any thought to the issue that created the ambiguity. That, he thought was all the more reason to accept the presumption that Congress wanted the agencies to work out future ambiguities.

Liberals and conservatives alike have deployed Chevron over the years. It favored the interests of deregulating agencies from the Reagan era through the Clinton and both Bush administrations.

But during the Obama presidency, conservatives began to question Chevron deference, which seemed to them to give too much authority to regulatory agencies to adopt policies that go beyond what Congress authorized.

In that spirit is Gorsuch’s remarkable, 22-page concurrence (to his own 14-page opinion!) in a case before the 10th Circuit Court of Appeals last year called Gutierrez-Brizuela v. Lynch.

Noted at the time by scholars, the opinion was highly unusual for an appeals court judge, who lacks the power to overturn Supreme Court precedent. Gorsuch opened by announcing that “There’s an elephant in the room with us today.” The elephant was Chevron,  which he said permits “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.” And Gorsuch left little doubt about his preferred solution: “face the behemoth” -- and shoot it.

The rest of the opinion is a skillful attack not just on deference, but on aspects of the administrative apparatus itself -- all grounded in the separation of powers, a principle arguably violated by administrative agencies. Gorsuch didn’t call for the rollback of the administrative state, exactly. But he noted cleverly that because the Framers never dreamt of what’s been called the headless fourth branch of government, we should be less inclined to defer to its decisions and actions, not more so.

Senate Democrats, fearing a conservative judiciary that strikes down progressive agency action, will likely attack Gorsuch for this opinion. But the truth is that Chevron deference isn’t inherently liberal or conservative. The real issue at stake is whether the judiciary should have the last word on the meaning of the law.

And here Gorsuch is right: The judiciary, not the executive, should ultimately say what the law is. As the Trump administration is already reminding liberals, the judiciary is the last bastion of law against executive overreach. The courts shouldn’t have to defer to Trump administration regulations that offer interpretations of federal law that are reasonable yet wrong.

Gorsuch is deeply conservative. But his Chevron opinion isn’t. It’s a ringing defense of judicial responsibility -- something liberals should care about very much.

  1. Scalia’s argument from presumed congressional intent isn’t deeply convincing. And indeed my colleague Adrian Vermeule, an administrative law scholar who clerked for Scalia, has recently argued that it was the judiciary itself, not Congress, that “voluntarily relegated itself to the margins of power” through deference. But this is a deep topic for another day.

  2. Gorsuch was also repelled by a 2005 Supreme Court case called National Cable & Telecommunications Association v. Brand X Internet Services., which followed the logic of Chevron and held that a court should defer to a reasonable agency interpretation of an ambiguous statute even if the court has already itself interpreted the statute differently. Even the pro-Chevron Scalia dissented.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net