Gorsuch's Views On Administrative Law Could Spell Trouble For the Executive Branch

Supporters of President Donald Trump are quick to point to the president’s appointment of Neil Gorsuch to the U.S. Supreme Court as one of his greatest accomplishments to date. Gorsuch was welcomed by conservatives of all stripes because of his deep commitment to judicial originalism. However, in a certain notable way, Gorsuch differs from his predecessor, the late Antonin Scalia, who was also a champion of originalism. A recent statement by the new justice highlights both this difference and a potential stinging point for President Trump and his branch of government.

This past week, the Supreme Court rejected a petition for certiorari in a case involving administrative agency law. The case, Scenic America v. Department of Transportation, involves a dispute between a nonprofit organization and the Federal Highway Administration. Though the Supreme Court ultimately did not accept the case, Justice Gorsuch issued a very revealing statement in response to the petition.

In his statement, the justice seems to challenge the legal concept of Chevron deference, in a sharp contrast to his predecessor who supported it. Chevron deference describes the deference a court grants to a federal administrative agency when it comes to statutory interpretation. Under such deference, articulated in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, courts will typically accept an agency’s interpretation of a statute as long as it can be construed as reasonable (a very low burden). There have historically been a couple salient reasons for this. First, agencies are often thought to be experts in their own subject matter. And second, it is thought that agencies should be given deference in their interpretations by virtue of the fact that Congress delegated certain legislative powers to them.

The issue in Scenic America is slightly more complex, however, because the case doesn’t explicitly involve an agency’s interpretation of a statute. Instead, the case concerns an agency’s interpretation of a contract that it is party to with a state. The circuit court held that the Chevron test for reasonableness should nevertheless be applied in cases involving contractual interpretation—but the matter is disputed by other circuits.

Gorsuch, in his response to the petition for cert, seems very skeptical of the appellate court’s line of reasoning. “But contracts usually represent compromises between two or more parties. And is it reasonable to suppose that one side to a compromise always has more expert insight into its meaning?” he writes.

Perhaps Gorsuch has a good point. Expanding Chevron deference to include the interpretation of contracts would seem to give unequal power to one party in a contract, namely the governmental agency. At the same time, it is an undeniable fact that Gorsuch’s argument would weaken the power of the administrative state by stripping it of its ability to authoritatively interpret contracts.

Gorsuch’s statement is particularly interesting because it reveals what could be for President Trump an unintended consequence of his decision to appoint the new justice. The president, who ultimately oversees the administrative state, may be surprised to learn that Gorsuch wants to curb his power.

It is also worth noting that this is not the first time in his career that Gorsuch has expressed disdain for Chevron deference. He did so most famously in another case entitled Gutierrez-Brizuela v. Lynch, where he authored both the majority opinion and a concurrent opinion specifically intended to take aim at Chevron deference.

SCOTUS ultimately did not take up Scenic America, but it will likely at some point take on another case that similarly addresses the matter of Chevron deference. It will be interesting to see how Gorsuch votes in the matter and whether the president accepts his appointee’s decision.

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