Gorsuch Pledges Open Mind on Question of Chevron Deference

Senators started probing Supreme Court nominee Neil Gorsuch Tuesday on the 1984 Chevron doctrine, involving courts’ deferral to agencies. Questions of deference are considered important on the legality of certain FCC actions. Gorsuch sought to avoid giving any definitive answer on whether he would push to abolish Chevron, as some Senate Democrats said seemed likely, instead pledging he would bring an open mind. The Senate Judiciary Committee is in the midst of a multiday confirmation hearing that began Monday (see 1703200051).

“You were clearly talking about overturning Chevron,” Sen. Amy Klobuchar, D-Minn., told Gorsuch, citing his 2016 concurrence. She quoted from it and said the writing “sounds to me like again you are going a step further and overturning a major precedent.” She said the late Supreme Court Justice Antonin Scalia was the doctrine's “original champion” and asked Gorsuch whether he would try to undo the doctrine and what he would want in its place.

Gorsuch said his concerns involved due process and the separation of powers. His role then as a circuit judge was to raise questions. “When I see a problem, I tell my bosses about it,” said Gorsuch.

“You would be the boss if you were the Supreme Court justice,” said Klobuchar. “Should we have de novo review? Is that better?”

“There was deference before,” Gorsuch said. “We had the administrative state for 50 years. And agencies issued rules and decisions.” He committed to an open mind and said he was then identifying issues for his superiors: “I would try and come at it with as open a mind as a man can muster.”

Chevron has been used "thousands of times," said Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif., a defender of the precedent.

Senate Republicans freely attacked the doctrine. “This deference allows unelected, unaccountable bureaucrats to rewrite the law” and is “inconsistent with the basic duties of judges under the Constitution,” said Sen. Orrin Hatch, R-Utah. He plans to soon reintroduce his Separation of Powers Restoration Act, which would nix the doctrine, he said. That law is “about restoring the constitutional allocation of power,” he said.

“I hope it’s something we legislatively can look at to help rein in the regulatory state, which in my humble opinion has gotten out of control,” Sen. John Cornyn, R-Texas, said of Chevron. Agencies led by unelected bureaucrats are “out of control” of voters, he said. Agency latitude is “a troubling concept,” he said.

Gorsuch’s questioning of the doctrine arose partly out of inquiries involving the Administrative Procedures Act, he told senators. The APA entrusts courts to decide what the law is on questions of law, he said, contrasting that with deferral on matters of agency expertise. “And is this consistent with our values of equal protection and due process and separation of powers? Those are questions I raised, senator, to tee up for my bosses.”

Gorsuch said he believes in following precedent and committed to his judicial independence at various points throughout hours of questioning Tuesday. He said even the president isn't above the law, responding to a question from Sen. Patrick Leahy, D-Vt., about his USA Freedom Act surveillance law. Gorsuch defended himself as a constitutional originalist, bringing up an instance where the principles of the Constitution still apply in a case of a GPS tracking device attached to a car. Sen. Ted Cruz, R-Texas, also asked how such an old document applies in the world of the internet. "You go back and look at the evidence of what it was understood at the time to protect," Gorsuch replied, saying the founders didn't know about email and GPS. A judge applying antitrust law looks to precedent, Gorsuch told Sen. Sheldon Whitehouse, D-R.I.

Some Senate Democrats expressed frustration with Gorsuch’s answers overall. “He simply wants to hide his views from the American people,” Senate Minority Leader Chuck Schumer, D-N.Y., said during a Tuesday leadership news conference. The Republican National Committee “is launching a six-figure ad blitz in support of President Trump’s nominee in twelve battleground states where vulnerable Democrats will be up for re-election in 2018,” it emailed Tuesday.