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."
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.