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Justice Gorsuch now has a golden opportunity to upend ‘controversial powers’ and ‘administrative state’

A photo shows Neil Gorsuch.

Justice Neil Gorsuch poses for an official portrait in the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, D.C. (Photo by Alex Wong/Getty Images.)

Justice Neil Gorsuch, uber-foe of the federal “administrative state,” will get his long-awaited chance to upend a Reagan-era rule he has opposed for decades.

The Supreme Court granted certiorari in Loper Bright Enterprises v. Raimondo Monday, but limited its review solely to the question of whether Chevron v. National Resources Defense Council should be overruled and Chevron deference should be eliminated for good.

What is “Chevron deference”?

Congressionally-created administrative Agencies (like the EPA, the FDA, the IRS, and other alphabet-soup government agencies) are almost always part of the executive branch, which is entitled only to executive powers of enforcing laws. Corresponding federal statutes empower agencies with limited rule-making authority as delegated by Congress. Federal administrative regulations are then adopted by regulatory agencies after a lengthy process that involves research, open discussion, and hearings.

When confusion arises over the precise meaning of a portion of a statute that is being administered by a federal agency, agencies themselves provide the definition (instead of the usual means of allowing courts to interpret statutes). This concept, known as “Chevron deference,” was put into place by the Supreme Court in 1984 as a means of allowing agencies to apply highly-technical expertise to ambiguities of language. Under the Court’s ruling in Chevron v. National Resources Defense Council, an agency is permitted to define a questionable term unless its interpretation creates a direct conflict with an act of Congress.

The Chevron case itself dealt with the Environmental Protection Agency’s (EPA)  authority to interpret the language in the Clean Air Act that regulated air pollution. The Supreme Court ruled that the EPA was best equipped to interpret the technical terms that specified regulatory standards.

What is Gorsuch’s problem with Chevron deference?

For Gorsuch and other conservatives, the problem is that deferring to agency definitions gives executive-branch agencies powers that should lie squarely with the judiciary.

Gorsuch has been clear in his distaste for Chevron deference, and once wrote in an opinion, “We managed to live with the administrative state before Chevron. We could do it again.”

Gorsuch also has something of a personal connection to the Chevron case. Anne Gorsuch, the justice’s mother, was appointed by Ronald Reagan in 1981 as the EPA’s first female administrator. She served for 22 months during which she substantially reduced the agency’s budget, relaxed Clean Air Act regulations, and facilitated pesticide use.

Although the EPA was permitted to use its definitions in to interpret Clean Air Act standards, Anne Gorsuch’s time at the agency was messy. Director Gorsuch not only cut a third of the agency’s 10,380 employees, but also cost the EPA $17.6 million in severance pay alone. Anne Gorsuch also became the first agency director in history to be cited for contempt of Congress when she refused to turn over records to Congress as part of a 1982 investigation into the EPA’s mishandling of 1.6 billion in Superfund money.

Just months ago, Gorsuch lamented his colleagues’ refusal to take up a case dealing with Chevron deference in the context of veterans’ benefits. In a dissenting statement, Gorsuch challenged his fellow justices, “We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts. Someday soon I hope we might.”

With the Court’s grant of certiorari Monday, Gorsuch’s “someday soon” could be on the horizon.

What is the case that is giving the justices the chance to overrule Chevron?

Loper Bright Enterprizes, Inc. v. Raimondo is an appeal of a ruling by a split panel of the U.S. Court of Appeals for the D.C. Circuit.

Although the petitioners asked the Supreme Court to review multiple aspects of the lower court’s ruling, the justices granted certiorari solely answer the question of “whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

Justice Ketanji Brown Jackson recused herself from the case because she heard arguments in this case when she served as a judge on the D.C. Circuit. Though Jackson heard oral arguments, she did not participate in the court’s ruling, because she was replaced by Judge Sri Srinivasan after President Joe Biden nominated Jackson to the Supreme Court.

The case involves a herring fishing company and a National Marine Fisheries Service regulation. Under the law, herring fishing boats must allow and pay for a person on board to serve as a compliance monitor. The requirement puts a financial strain on the already-struggling fishing industry.

The fishing company challenged the rule and argued that the federal Magnuson-Stevens Act does not require that the companies bear the burden of paying the compliance monitors. The D.C. Circuit sided 2-1 with the National Marine Fisheries Service, and applying Chevron deference, ruled that it properly interpreted its own regulation. The ruling was authored by Chief Judge and Barack Obama appointee Sri Srinivasan and Bill Clinton appointee Circuit Judge Judith Rogers.

U.S. Circuit Judge Justin Walker, a Donald Trump appointee and protege of Justice Brett Kavanaugh, dissented, writing that “the Fisheries Service attempted a workaround,” by deciding to make fishing companies pay for their own at-sea monitors. Walker said that if Congress had wanted the fishing industry to bear this financial burden, it would have said so, and that “Fisheries Service’s capacious reading [of the regulation] is wrong.”

Do we know how the Supreme Court will ultimately rule on the Chevron question?

Limiting the so-called “administrative state” has become a particular rallying cry among conservatives, and now they have their shot at nixing Chevron.

Chief Justice John Roberts penned a dissent in a 2013 case that was joined by Associate Justice Samuel Alito in which the chief justice made clear his position on federal agencies:

The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy” and the authority administrative agencies now hold over our economic, social, and political activities. Ibid. “[T]he administrative state with its reams of regulations would leave them rubbing their eyes.”

While Roberts allowed that, “It would be a bit much to describe the result as ‘the very definition of tyranny,'” he warned that “the danger posed by the growing power of the administrative state cannot be dismissed.”

Justice Clarence Thomas has also declared his opposition to an “administrative state,” and would likely vote to overturn Chevron.

The ruling by this 8-member court could come down to Justice Kavanaugh, a former judge on the D.C. Circuit, who has penned scores of opinions relating to administrative law. Although Kavanaugh has not declared war on agencies to a Gorsuch-level extent, Kavanaugh has demonstrated skepticism toward expanding the reach of federal administrative regulations.

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Less clear is how Justice Amy Coney Barrett, Sonia Sotomayor, or Elena Kagan would vote. A unanimous Supreme Court dealt a loss to the Federal Trade Commission in April 2023, showing that rulings on administrative law do not always fall along ideological lines

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos