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You probably never heard of the “Chevron Deference,” and frankly, neither did I until just today. And no, it has nothing to do with gasoline stations. But with Justice Anthony Kennedy retiring, a new Supreme Court Justice just might help to defang this decision — a good move towards smaller government.
The Chevron Deference, which came from a 1984 ruling, requires courts to defer to government agencies when it comes to interpretations of statutes, if the court finds a statute ambiguous. And even if a court finds that another interpretation is reasonable, it still must defer to that agency’s interpretation.
That sounds a bit like allowing the fox to guard the henhouse, doesn’t it?
Here’s how the Federalist Society explains Chevron. And believe it or not, the late conservative Justice Antonin Scalia was at first a supporter of Chevron.
Then along came Justice Neil Gorsuch.
Justice Gorsuch is no fan of the Chevron deference. As a federal appellate judge, Justice Gorsuch wrote that Chevron allowed the Feds. . .
“. . .to swallow huge amounts of core judicial and legislative power…in a way that seems more than a little difficult to square with the Constitution.”
Of course that put big government advocates in a tizzy. Liberal Vox fretted that “Neil Gorsuch could rein in regulators like the EPA and the FCC.”
And that would be bad because? Oh, wait. Say goodbye to the Left’s dream of ‘net neutrality,’ along with other big government ambitions.
Now this summer President Trump will be nominating a new justice to the Supreme Court, and he intends to pick from the same list that gave us Justice Neil Gorsuch. Furthermore, some conservative pundits are predicting the nod will go to one of three women.
And Senate Majority Leader Mitch McConnell says a vote on Kennedy’s successor will happen this fall:
MCCONNELL: "We will vote to confirm Justice Kennedy’s successor this fall."
— Phil Mattingly (@Phil_Mattingly) June 27, 2018
Democrats already see the handwriting on the wall. Check out this audio:
How it sounded inside a DNC committee meeting the moment Justice Kennedy’s retirement was announced pic.twitter.com/6S9uO2JGzQ
— David Siders (@davidsiders) June 27, 2018
So stay tuned, folks. A new conservative Supreme Court Justice just might help put the kibosh on Federal Agencies and their heavy-handed regulations.
Toni Williams says: Great read, Kim. Now I know what the Chevron Deference is.
DKWalser says: Chevron deference makes sense when the regulation deals with highly technical or scientific matters, but not where the regulations are merely implementing a statute. If Congress has tasked the EPA with writing regulations to reduce pollutant ‘x’ to a target level, the courts are not well equipped to second guess how well the EPA’s regulation meets that objective and should give the agency’s scientific judgement a fair amount (but certainly not absolute) deference.
On the other hand, if the IRS is tasked with writing regulations implementing Congress’ new depreciation rules, the courts are very well equipped to read and understand the statutory language — that’s a basic function of the judiciary. So, why should the court’s grant the IRS ANY deference in interpreting the statutory language?
GWB says: Concur with DKWalser – it’s complicated.
The idea of deference to how legislation (via regulation) is implemented makes sense. Regardless of the intent of the legislators, how it’s actually implemented is how the law is applied, and should (mostly) be how the courts interpret things. So, if the implementation is questionable, then the law should be dealt with in that way, and vice versa.
The real problem with deference is that so many laws are written in the manner of “We think gun crime should be reduced. And it’s the BATF’s job to do that. Now make it happen.” Which is NOT how regulations to implement a law was intended by our founders. It has given way too much power to the unelected portion of the Executive branch, and allowed the Legislative branch to avoid accountability for what they should be doing.
If the Supreme Court would begin looking at the larger picture, instead of the pecking at the margins they currently do, we might actually restore the power of the Constitution. (Or we might trip entirely over into Rule Of Man.)
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