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."