The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today I have a piece over on the "real" opinion page discussing how Judge Neil Gorsuch's approach to administrative law differs from that of Justice Antonin Scalia. A taste:
Gorsuch is not a carbon copy of Scalia, however. Perhaps the greatest area of difference between Gorsuch and Scalia concerns administrative law, in particular the relationship between the judiciary and federal agencies. While esoteric to some, these differences are of profound importance given the all-encompassing reach of today's administrative state.
Both jurists acknowledged the vital role of constitutional separation of powers in constraining government power and preserving individual liberty, yet they drew different lessons for judicial review of agency action. Scalia feared an overweening judiciary that would use the power of judicial review to direct regulatory policy and supplant the policy judgments of presidential appointees. As a consequence, he was a strong proponent of the Chevron doctrine, under which courts are required to defer to reasonable agency interpretations of ambiguous federal statutes. Under Chevron, if a regulatory law is not crystal clear, the implementing agency gets to decide what it means.
Scalia defended Chevron against its detractors left and right, seeing a useful constraint on activist courts. Gorsuch, on the other hand, sees in Chevron a potential threat to the fundamental obligation of the judiciary to interpret federal statutes and "say what the law is."
You can read the whole thing here.
For still more on Gorsuch and administrative law, check out "The Administrative Law Originalism of Neil Gorsuch," by David Feder. Of note, Feder clerked for Gorsuch on the U.S. Court of Appeals for the 10th Circuit. Readers may also be interested in this article at Legal Planet by Ann Carlson trying to suss out Gorsuch's environmental views.