One of the legal issues discussed during nominee Neil Gorsuch’s hearings last week was something known as the Chevron deference. That Judge Gorsuch has announced a skepticism of this legal doctrine recommends him highly to the Supreme Court for pro-freedom types, and it’s one reason leftists are determined to see his nomination fail.
Our system seems clear under a plain reading of the U.S. Constitution, and that system does not allow for the executive branch to make laws. That’s what Chevron is about and why both sides care about it. One of the things that liberty advocates cannot abide is executive lawmaking. That is when bureaucrats in an executive agency make a rule which has the force of law. This type of activity has exploded with the growth of government in the last fifty years, and it is problematic both because it runs afoul of the constitution and because it has led to unelected and largely unaccountable individuals making laws that have existential consequences for America.
Under Chevron, if a regulatory law is not crystal clear, the implementing agency gets to decide what it means and can change that decision at any time for any reason. What does that have to do with Gorsuch? Law professor Jonathan Adler tells us:
Writing separately in one recent case, Gorsuch explained that under the Constitution, as written, it is the job of “the people’s representatives” to “adapt the law to changing circumstances.” Under Chevron, however, federal agencies may issue legally binding interpretations of federal law and revise these interpretations as circumstances (and political administrations) change. Although he stopped short of calling for Chevron’s reversal, Gorsuch warned that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”
Sen. Al Franken (D-MN) remarked that he trusts government employees to determine all these laws but not a fellow Democrat Senator. For much if not most of these things, liberty demands that no one make such rules. If the rules are to exist, however, Franken apparently would prefer that they be instituted by, for example, EPA employees rather than elected officials.
That’s not a problem, until the factory owner gets a letter from the EPA mandating their spending of several million dollars over the next year or be shut down. It is also a problem for the workers and their families, not to mention the shareholders and the guy who owns and operates the coffee/lunch wagon outside.
People who argue against the Chevron deference don’t want to live in a world full of deadly products and choking pollution everywhere. But these “rules” are in reality laws, and as such must be passed by Congress and signed by the President, or passed by overriding his veto, as the Constitution prescribes. Those are the only constitutional options.
The Chevron deference is the epitome of the idiom “you can’t fight city hall,” and why a judge who supports it is one worth confirming, or eliminating, depending on which side you support.