If you have paid any attention to the U.S. Senate confirmation process for Colorado’s Judge Neil Gorsuch to the U.S. Supreme Court, you’ve heard Chevron come up.  According to Senator Al Franken (D-Minnesota), “For anyone who cares about clean air or clean water or about the safety of our food and medicines, it’s incredibly important . . . [it] simply ensures that judges don’t discard an agency’s expertise without good reason.”  In a 2016 opinion, Judge Gorsuch called Chevron a behemoth and argued that it “permit[s] 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.”

Chevron refers to a U.S. Supreme Court decision decided 33 years ago, Chevron U.S.A., Inc. v. Natural Resources Defenses Council, Inc., 467 U.S. 837 (1984) that embodies the judicial doctrine of court “deference” to an agency’s interpretation of ambiguous federal statutes.¹   In Chevron, the Supreme Court reasoned that an agency is the subject matter expert and should have the authority to make policy choices – within reason.

The “Chevron Two Step” describes how this court-created analysis works:

Step 1:    Has Congress directly spoken to the precise question?  If so, the analysis stops and the court looks to the statute.

Step 2:    If not, if Congress is silent or the statute unclear, is the agency’s interpretation of the statute based on a permissible (reasonable) construction of the statute?

In today’s regulatory world, Congress does not legislate in fine print and agencies are typically left to “fill in the gaps” through rulemakings interpreting the statute.  For those who remember their high school civics lessons on the constitutional separation of powers – Congress writes the laws, the Executive executes the law and the Judiciary interprets the laws – the current focus on the question of who decides makes sense.

In a Tenth Circuit 2016 immigration case, Judge Gorsuch made this concern plain, “Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them.  “Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10th Cir. 2016).  As Judge Gorsuch explained to Senator Feinstein (D-California) during his hearing, both the seminal decision Marbury v. Madison, 5 U.S. 137 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is”) and the Administrative Procedure Act (“APA”) § 706 (“the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions . . .”) support his argument that it is the courts, not administrative agencies, who should interpret law.  Judge Gorsuch told the Senator that deference to an agency’s technical or scientific expertise is appropriate – but interpretation of law is the province of the judiciary.

A legal commentator has raised another concern with the judicial deference to federal agencies arguing this Chevron “deference” violates due process by injecting “judicial bias” into the system by forcing “judges to engage in systematic bias favoring one party – the most powerful of parties – in violation of the Fifth Amendment’s due process of law.”  Columbia Law School Professor Philip Hamburger, New York Times (March 20, 2017).

Although the inaugural use of Chevron was a decision to defer to President Reagan’s deregulatory efforts at EPA and was similarly used in the Clinton and both Bush administrations, in the Obama era of expansive administrative rulemakings like the Clean Power Plan, conservatives began to question Chevron deference to “unelected bureaucrats.”  In that spirit, Senator Hatch (R-Utah) introduced legislation in 2016 that the House reintroduced this year (HR 76), “The Separation of Powers Restoration Act,” to amend APA § 706 to make clear that courts shall decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”

In 2017, the House also introduced the “Regulatory Accountability Act of 2017” (HR 5), which contains provisions to nullify both Chevron and Auer by including the HR 76 amendment to APA § 706 and another to direct that courts “shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law.”  On January 11, 2017, the House passed the Act (238 to 183) and sent it to the Senate for its consideration.  If sent to President Trump’s desk, it is expected to be signed.

But would it “tame” the administrative state?  As Professor Hamburger argues, “That seems silly – at its heart such a doctrine is merely a judicial tool.  Whether the bureaucracy shrinks or grows depends on what Congress and the president do.”  Perhaps a “Justice” Gorsuch would disagree and argue that the Court can steer the “administrative state” back into its proper lane by performing its judicial duty “to say what the law is.”

¹  A related doctrine is the Auer doctrine directing similar court deference to an agency’s interpretation of its own regulations.  Auer v. Robbins, 519 U.S. 452 (1997) (Agency’s interpretation of its own rule is “controlling unless plainly erroneous or inconsistent with the regulation . . .”).