The narrative about Democrats’ opposition to Judge Gorsuch’s appointment to the Supreme Court is simple: it’s payback for the Republicans’ refusal to even give President Obama’s nominee Merrick Garland a hearing last year on spurious grounds. “No SCOTUS appointments in the last year of a President’s term,” they shouted. For reasons I still don’t understand, after early protests Obama and the Democrats stopped fighting this ridiculous argument.
But the Senate Democrats have more than revenge on their minds. Here’s one of the things they don’t like about Gorsuch:
Businesses have always complained that government regulations increase their costs, and no doubt some regulations are ill-conceived. But a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that’s not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state “poses a grave threat to our values of personal liberty.”
In other words, agencies like the EPA and the FDA and the FTC and so on make horrible rules that keep corporations and people (the same thing, according to numerous decision by the Supreme Court) from expressing their freedom (or, from having their religious liberties infringed upon, as the Hobby Lobby decision said). Agency rule-making has been a precept of Federal (and presumably state) government administrations for years. After a couple of challenges in the New Deal era which suggested only Congress could make the rules, the Court recognized that agencies could respond to changing conditions in the economy far more quickly than Congress and didn’t take up the idea again.
Then in 1984 Reagan’s EPA tried to relax air pollution rules to let more plants emit more pollutants and an environmental group sued. The resulting case was Chevron v. Natural Resources Defense Council. “The Court ruled that EPA (and any agency) could determine the meaning of an ambiguous term in the law. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean.”
Businesses, however, have continued to complain that the federal government regulates too much. In the past 20 years, conservative legal scholars have bolstered the red-tape critique with a constitutional one. They argued that only Congress — not agencies — can create rules. This is Schechter Poultry* all over again.
And Judge Gorsuch has forcefully joined in. Last year, in a concurring opinion in an immigration case called Gutierrez-Brizuela v. Lynch, he attacked Chevron deference, writing that the rule “certainly seems to have added prodigious new powers to an already titanic administrative state.” Remarkably, Judge Gorsuch argued that Chevron — one of the most frequently cited cases in the legal canon — is illegitimate in part because it is out of step with (you guessed it) Schechter Poultry. Never mind that the Supreme Court hasn’t since relied on its 1935 attempt to scuttle the New Deal. Nonetheless, Judge Gorsuch wrote that in light of Schechter Poultry, “you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.”
At his confirmation hearings, Judge Gorsuch hinted that he might vote to overturn Chevron without saying so directly, noting that the administrative state existed long before Chevron was decided in 1984.
Imagine a country in which rules and regulations could only be written by Congress, which has members who refuse to believe the climate is changing and members who think the Feds shouldn’t even own land, much less determine what can be done on that land. Talk about gridlock!
That’s another reason the Democrats don’t want Gorsuch on the Court: they think he’s a radical right-wing judge who’d vote to overturn 80 years of precedent.
*Shechter Poultry was a 1935 case in which the Court decided a federal agency overstepped its bounds by regulating a slaughterhouse’s activities. “Only Congress can create rules like the poultry code, the justices said. Because Congress did not define “fair competition,” leaving the rule-making to the president, the N.I.R.A. violated the Constitution’s separation of powers.”