Supreme Court

Federal Judge Denounces Judicial Deference to Federal Regulatory Agencies

Says Chevron deference equals "the abdication of the judicial duty."


Library of Congress

In a landmark 1984 decision known as Chevron U.S.A., Inc. v. Natural Resources Defense Council, the U.S. Supreme Court held that when the federal courts are confronted with an "ambiguous" statute, the default position is for federal judges to defer to the statutory interpretation favored by the federal agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," declared the majority opinion of Justice John Paul Stevens. "While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." In other words, Chevron instructs the courts to tip the scales of justice in favor of federal agencies in cases dealing with questionably worded federal statutes. Lawyers call this approach "Chevron deference."

To say the least, the existence of Chevron deference raises some significant legal questions. For example, don't federal judges have an independent duty "to say what the law is," as Chief Justice John Marshall famously put it in Marbury v. Madison? What's more, doesn't the separation of powers doctrine stand in the way of unelected federal bureaucrats defining the scope of their own authority?

In a concurring opinion filed this week in the case of Gutierrez-Brizuela v. Lynch, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit asked and answered those very questions. His judgment? Chevron deference needs to go.

Chevron is a "judge-made doctrine for the abdication of the judicial duty," Judge Gorsuch declared. "Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive)." In his view, "under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."


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  1. Chevron is a “judge-made doctrine for the abdication of the judicial duty.”

    Sort of like Gulf of Tonkin resolution was template for (ongoing) decades-long Congressional punting of war powers?

  2. Gorsuch: “You betrayed the Law!”
    Stevens: “Laaaaaaahhhhhhwwwwwwwwwwww.”

  3. There’s my litmus test for replacing Scalia – do you agree with Scalia that overturning an abomination like Chevron is not “judicial activism” but is in fact the complete opposite, judges doing their duty in seeing to it that the rest of government sticks to their Constitution limits?

    1. “At this point what difference does it make?”

    2. Look, unelected judges (who are unelected for a reason) are nonetheless duty-bound to respect the wishes of voters (strained as those wishes are through a thousand circuitous miles of increasingly fine filtration connecting voter to representative).

      1. Press 1 for Wishes Align with Democratic Oligarchy
        Press 2 for Wishes Align with Republican Oligarchy
        Remain on the line to hear this message again…

      2. So, ‘commodious’; you would prefer to defer to faceless, nameless bureaucrats ? appointed under who God only knows whose administration(s) ? who all-too-often expand what the Congress intended with the law they passed into what these bureaucrats image of what Americans can do with their lives.

        Does this mean that you scan the The Office of the Federal Register’s web Public Inspection page of new regulations every day to see what these faceless, nameless bureaucrats have in mind to screw up your freedom?

        Just today (23 Jan 2017) you would find:

        Special Filing
        updated on 02:15 PM, on Monday, January 23rd, 2017
        35 documents from 26 agencies

        14 Notices
        2 Presidential Documents
        3 Proposed Rules
        16 Rules

        Regular Filing
        updated on 08:45 AM, on Monday, January 23rd, 2017
        89 documents from 40 agencies
        79 Notices
        1 Proposed Rule
        9 Rules

        And this happens every day! 🙁

    3. Start working at home with GOOGLE! YAHOO. ABCNEWS AND MORE GLOBAL SITES? It’s by-far the best job I’ve had. Last Monday I got a brand new BMW since getting a check for $6474 this ? 4 weeks past. I began this 7-months ago and immediately was bringing home at least $97 per hour. i work through this web.. Go this website and go to tech tab for more details…

    4. Too bad it won’t be you but Hillary who will be nominating the next justice, who in all certainty will be to the left of Scalia. How left depends on how badly the Senate shifts towards the Democrats.

      1. ROTFLMFAO!!! ;-D

        Guess you never expected that on November 8th, 52% of the voters would NOT want sociopathic liar Hillary Diane Rodham “What Difference Does It Make” Clinton, the ‘Bitch of Benghazi’ as the 45th President of the United States of America.

  4. I guess we know one judge who will never come within a mile of a SCOTUS appointment.

    1. Uh, quess what, ‘Servator’:

      Jan 22, 2017 7:15 PM
      Matt Vespa
      CBS This Morning: Sources Are Telling Us A Leading SCOTUS Candidate Has Emerged To Fill Scalia Vacancy

      Well, SCOTUS watch kicked off on CBS This Morning Saturday, with Jan Crawford saying that her sources are telling her that a leading candidate has emerged from President Trump’s solid list of judicial candidates to fill the vacancy left by the late Justice Antonin Scalia: Judge Neil Gorsuch of the United States Court of Appeals for the 10th Circuit.


  5. I’ve never understood the idea of deference in that most of the time, the laws in question have nothing to do with constituency, but rather, some particular power grab. Additionally, appeal to constituency should fall a clear second to the rights of citizens.

    I know, I know, I’m a rube for believing such nonsense.

  6. I think Chevron makes since in the context of a limited regulatory scheme and true ambiguity. When in doubt, why not let the regulators make their best guess and then let congress (or the people) push back if needed?

    What Chevron doesn’t anticipate, is a concerted effort by the Executive to use regulations to bypass the other branches. In such an environment, it makes sense to err on the side of limiting regulatory power. In every possible way, and under the strictest interpretation.

    And then you let congress grant explicit permission to expand the regulatory scope as needed.

    1. In the case of true ambiguity, the court should toss the regulation and say it is Congress’s to resolve the problem. If there’s true ambiguity, there is no clear authorization from Congress for the agency to do anything.

      1. Agreed. Ambiguity just opens the door for arbitrary and capricious executive action; better for a judge to strike the law and tell Congress to try again. The ability that Congress has to “push back” against an agency is an illusory protection since the process for passing a bill is much harder than the process for an agency to barf up a zillion pages of regs.

  7. Another libertarian nanosecond!

  8. Chevron deference never made sense to me. Yes, the federal agencies are accountable to Congress, the President and (indirectly) the people. However, federal judges’ general unaccountability to the people when adjudicating disputes is the point of their existence.

    If Congress made an ambiguous statute because it would rather have agencies “fill in the gaps” (and then hypocritically complain about how the agency “got it wrong”), the federal courts should call them out.

  9. Why is it the Executive is the only branch pining for more power while the other two do everything they can to shed responsibility.

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