Does Neil Gorsuch's nomination portend shift in balance between judges, regulators?

WASHINGTON – Chevron deference is not a household phrase. But this 33-year-old legal doctrine, which discourages judges from overruling government regulations, rose to the status of abortion and voting rights in U.S. Supreme Court nominee Neil Gorsuch’s confirmation hearing last week.

While the arcane precedent recognizing the right of civil servants to write policies that implement U.S. laws may sound boring, sacking it, as Gorsuch suggested in a recent legal opinion, will resonate for businesses and citizens across the country and in every corner of the federal bureaucracy.

In Minnesota, increasing the ability of judges to change or undo federal rules and regulations could impact everything from pollution in the Mississippi River to the safety of medical devices marketed by local companies to the standards under which the state’s massive food and farming sectors operate.

“It cuts across a huge swath of agencies,” including the Environmental Protection Agency, the Food and Drug Administration, the Department of Health and Human Services, the Department of Homeland Security, the Internal Revenue Service, the Securities and Exchange Commission and others, said Kristin Hickman, a University of Minnesota law professor and one of the nation’s leading scholars on Chevron deference.

“In a world without Chevron we’re relying on federal judges to make decisions depending on technical expertise that they probably don’t have,” added Mehmet Konar-Steenberg, an administrative law specialist at Mitchell Hamline School of Law in St. Paul. “Most federal judges are really smart. But few hold degrees in organic chemistry.”

Ironically, the 1984 Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. case involved loosening of an air pollution permitting rule during the Ronald Reagan administration when Gorsuch’s mother, Anne Gorsuch, ran the Environmental Protection Agency. The Supreme Court ruled unanimously in favor of the agency’s rule, citing civil servants’ expertise and political accountability. The court said that if a law is “silent or ambiguous” on a “specific issue,” judges must defer to an agency’s interpretation if it is reasonable.

During Gorsuch’s appearance before the Senate Judiciary Committee, Democratic Sens. Amy Klobuchar and Al Franken of Minnesota each expressed concern with the Supreme Court nominee’s written statements that it might be time to repeal Chevron deference, which is the most cited precedent in administrative law.

“It would create such uncertainty,” Klobuchar told the Star Tribune. “Judges would be intervening in policy decisions.”

Klobuchar pressed Gorsuch in every round of questions on whether he would be willing to jeopardize all of the country's administrative rules because he feels constrained by Chevron.

Franken said he thinks the Trump administration sees government regulation “as a burden on big business” and has used Gorsuch’s presumed opposition to Chevron deference to promote his appointment to conservatives and companies bent on “deconstruction of the administrative state.”

Trump adviser Steve Bannon told a recent gathering of conservatives that getting rid of federal regulations was a White House goal.

“Every business leader we’ve had in is saying not just taxes, but it is — it is also the regulation,” Bannon said at the annual meeting of the Conservative Political Action Conference.

Bannon spoke during a joint presentation with White House Chief of Staff Reince Priebus who told the crowd that “Neil Gorsuch represents a conservative — represents the type of judge that has the vision of Donald Trump.”

Franken asked Gorsuch if he thought only cabinet appointees were selected to bring about regulatory deconstruction. Franken said he worried that the administration wanted to “appoint pro-corporate judges willing to substitute their own judgment on these matters for those of experts.”

“Do you think the White House also sees a role for its judicial nominees?” Franken asked.

“Senator, respectfully, I think that is a question better directed to Mr. Bannon,” Gorsuch replied, explaining that his questions about Chevron deference stemmed from the case of an undocumented immigrant, not “any big corporate interest.”

Republicans who support Gorsuch have defended his criticism of Chevron deference as a separation of powers issue. A news release distributed last week by the Senate Republican Communications Center bore the headline: “Judge Gorsuch Has Questioned Agencies’ Expansive Interpretations Of Their Own Powers.”

The Republicans cast the issue as judges vs. bureaucrats. But Hickman points out that Justice Antonin Scalia, the Republican appointee who Gorsuch would replace, was one of Chevron’s strongest proponents.

The judicial activism spawned from its demise is equally unsettled.

“I can’t say the environment would be a clear loser,” said Kevin Reuther, legal counsel for the Minnesota Center for Environmental Advocacy. “But in a practical sense it might be. If you remove Chevron, you invite more lawsuits, and industry has more resources.”

Konar-Steenberg said that repealing Chevron deference could also invite jurists to shape policies that track with their philosophies.

“While I think that most judges do their best to decide questions within the confines of the law and to keep their own personal policy preferences out of it, regardless of who appointed them, these Chevron situations are a particular hazard for judicial activism,” Konar-Steenberg said.

Hickman was less worried.

“My own take on it is that getting rid of Chevron as a doctrine is unlikely to get rid of judicial deference entirely,” she said. “In a hugely political case not having Chevron might yield a different outcome. But I don’t think that is most cases.”

Still, the issue remains a flash point for many Democrats worried that Trump’s judicial appointees will indulge the president’s hands-off-business political agenda at the expense of consumers, workers and health care patients.

“This is a big deal,” Franken told Gorsuch during last week’s hearing. “During the entire 114th Congress, Chevron deference was mentioned only twice on the Senate floor. But between the announcement of your nomination on Jan. 31 and last week, that decision was mentioned 30 times.”