Watch this Space: Jurists Consider Whether the Executive Branch Has Too Much Power

Here’s something you might have missed in the constant onslaught of real and fake news: Supreme Court nominee Robert Gorsuch has an unusual (but not too unusual) opinion about a legal doctrine which allows courts to defer to the executive branch in certain complex legal matters. Translated from legalese, this means that Judge Gorsuch has a very publicly accessible view about whether or not the courts currently yield too much of their authority to the executive branch (spoiler alert: he thinks they do).

Called the Chevron Deference, the doctrine is used in situations where the law is ambiguous, and requires the court to analyze “whether [an] agency’s [analysis] is based on a permissible construction of the statute (emphasis added).”[1]

The Chevron analysis has been used in many landmark cases. Proponents note its historical role in supporting public health and safety laws, for example. Additionally, at a time when Congress seems constantly gridlocked, it can allow agencies to make decisions leveraging their expertise. Indeed, the Fourth Circuit notably deferred to the IRS in their decision regarding healthcare exchanges and the Affordable Care Act in King v. Burwell. Perhaps even more notably, the Supreme Court broke away from the Chevron analysis in their review of King v. Burwell, highlighting that the extraordinary economic and political implications at play were not an issue for the IRS. In so doing, the Court rejected what would undoubtedly have been an easier analysis but also protected the ACA from what would have been an incredibly easy dismantling under a new administration.

All this to say, Judge Gorsuch is definitely not the only jurist to speak out against Chevron. His analysis 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”[2] eloquently describes the feelings of a number of other judges who believe that in relying too heavily on Chevron, courts end up ceding too much of their own independent authority. Indeed, the Roberts Supreme Court has hinted that when major economic or political issues are at stake, the Court should step up to the challenge.

At a time when checks and balances seem especially important, this conversation is more relevant than ever.

What does all this mean going forward? That’s a good question. As you would expect, most administrations welcome courts deferring to their analysis of a law. A narrowing of the use of Chevron would cede power from the executive branch and would arguably underscore the delineation between the branches of government. It would likely also slow down the executive branch and agencies as they seek to function despite a dysfunctional Congress. It is possible that this issue will remain dormant if and when Judge Gorsuch is confirmed. Nevertheless, with all of these conversations percolating, watch this space for news about how this somewhat esoteric principle could impact how the agencies carry out their functions.

[1] See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[2] See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

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