Neil Gorsuch

Federal Judge Says Judicial Deference to Executive Branch Agencies Is 'Judicial Abdication'

Judge Janice Rogers Brown takes aim at Chevron deference.


Newly appointed Supreme Court Justice Neil Gorsuch is an outspoken foe of Chevron deference, the legal doctrine that tells federal judges to tip the scales in favor of executive branch agencies when those agencies have offered a "reasonable" interpretation of an "ambiguous" federal statute. "Under any conception of our separation of powers," Gorsuch has written, "I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."

An important case decided last week by the U.S. Court of Appeals for the District of Columbia Circuit reveals that Gorsuch has a key anti-Chevron ally on that court. At issue in Waterkeeper Alliance v. Environmental Protection Agency was whether the EPA exceeded its authority under federal law while attempting to regulate animal waste produced by farms. According to the unanimous D.C. Circuit opinion written by Senior Judge Stephen Williams, "the EPA's action here can't be justified."

U.S. Court of Appeals for the D.C. Circuit

Among the judges who joined that unanimous opinion was Janice Rogers Brown, a Republican-appointee who has previously exhibited certain libertarian tendencies in cases dealing with such issues as economic liberty, police misconduct, and Amtrak. Those tendencies were on display once again last week.

"I join in the Panel Opinion because '[the EPA's approach] ran afoul of the underlying statutes (and was therefore outside the EPA's delegated authority),'" Judge Brown declared. But she also wrote a separate concurrence, in which she went further, rejecting efforts by the EPA and others to shoehorn lawless executive branch behavior in via the already too lenient standard set forth by the Chevron doctrine. "If a court could purport fealty to Chevron while subjugating statutory clarity to agency 'reasonableness,'" she wrote, "textualism will be trivialized."

Brown concluded her concurrence by observing that "an Article III renaissance is emerging against the judicial abdication performed in Chevron's name." Article III is that part of the U.S. Constitution that grants "the judicial power" to the courts. In other words, what Brown is saying is that certain federal judges are starting to get fed up with judicial deference to the executive branch and starting to wonder whether the time has come to perform their judicial duty to "say what the law is," as Chief Justice John Marshall once put it.

As evidence of this Article III renaissance, Brown pointed to none other than Neil Gorsuch, quoting from then-Judge Gorsuch's 10th Circuit opinion in Guiterrez-Brizuela v. Lynch, in which Gorsuch wrote, "whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law."

To be sure, Chevron is at no immediate risk of being overturned. But if Judge Brown and Justice Gorsuch ultimately have their way, the doctrine's days will be numbered.

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  1. Janice Rogers Brown for supreme court justice! All nine seats.

    1. I heartily second replacing RBG with JRB.

      1. How awesome would that be? If Trump really wanted to fuck with his opponents, she’d be a great way to go. But I’m sure his advisors are as terrified of her as Democrats, federal bureaucrats and leftists are.

        1. A triple redundancy! Congratulations.

          1. I was expecting that.

        2. Black woman? How could anyone oppose?

          1. That’s a big part of the awesomeness.

  2. This can’t be right. A progressive FB friend of mine assures me that only white males are libertarian.

    1. Progs are such racist, they just think it is for a good reason.

  3. And I suspect this is the real reason Schumer and Company were so opposed to Gorsuch; that and payback for Garland, of course.

  4. Imagine that, some judges have noticed that their jobs aren’t to rubber stamp whatever unelected bureaucrats do.

    Maybe, if the Judicial system starts shooting down regulatory agencies, Congress would need to actually do some work instead of just shrugging and saying ‘oh no, those rascals in the Executive Branch are going AWOL again!’

    It’s fully within Congresses power to overrule any regulatory agency. Congress writes laws. Yet they seem more interested in campaigning against the regulatory state while simultaneously fully endorsing what it does through their absolute lack of oversight.

    It was a real mistake to freeze the number of Congressional seats.

  5. It would be really interesting if Trump nominates her for the next SCOTUS vacancy. Just watching the progressives tie themselves into mental pretzels opposing the appointment of the first black woman SC Justice would be endlessly entertaining.

    1. It could well be the best thing Trump could possibly do as president. Though I don’t think it’s very likely, unfortunately.

    2. The left has proven to everyone that it has absolutely zero problem in essentially labeling no-thinkum-good black opponents as modern day Uncle Tom’s. That’s been the consistant subtext in my book, anyway.

      Remember, kids. The ‘soft’ racism of low expectations is alive and well on the left. Those poor black people are just so inferior that they need all the help their betters can give them. That is what I hear time and time again when rabid leftists open their mouths, and I find it disgusting. I hear more or less the same message when the left talks about any of their subgroups.

      Women, Immigrants, Minorities, it doesn’t matter. None of them have any agency.

      1. And they are all monolithic blocs with the same interests and values, apparently.

  6. She should have been on the court instead of Roberts.

    Probably too old now.

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