March 2, 2020 12:48PM

Supreme Court Proves Me Wrong on Judicial Deference

When it comes to the Supreme Court, it’s a fool’s errand to prognosticate. Take, for example, my post from last week.

Back then, I’d “read the tea‐​leaves” of the Court’s refusal to review Baldwin v. United States. Long story short: Baldwin had been the perfect vehicle for taking on the famed Chevron doctrine of obsequious judicial “deference” to an agency’s interpretation of the law. By passing on the case, I’d speculated “that Chevron reform is on the [Court’s] backburner.” To reach this conclusion, I had inferred much from Justice Gorsuch’s silence.

Well, it took a week to prove me wrong.

This morning, in a “statement” to an order with which he agreed, Justice Gorsuch went out of his way to announce that “Chevron [deference] has nothing to say about the proper interpretation of the law before us.” Again, there was no reason to bring this up.

He then proceeded to explain why the lower court was wrong to rely on the Chevron doctrine. For starters, the government expressly disavowed deference. Despite this concession, “the [appeals] court proceeded to uphold the agency’s new rule only on the strength of Chevron deference.”

Gorsuch further noted that the controversy entailed criminal sanctions and that deference is disfavored in this context.

Finally—and by far of greatest doctrinal importance—Gorsuch said the following:

And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Here, Justice Gorsuch is getting at the crux of the problem with the modern leviathan. Now that policymaking flows primarily from the executive branch (rather than Congress), it follows that every presidential election initiates a tectonic shift in the federal regulations that affect every aspect of the economy and personal conduct. In turn, these endless flip‐​flop‐​flips are abetted by the Chevron doctrine. Gorsuch is implying that, at some point, these vacillations, per se, become unreasonable. At this point, Chevron would be unavailable.

Justice Gorsuch concluded by noting the Court does not suffer from a “lack of concern” over these issues. Which is basically the opposite of what I said last week, though I’m happy to be wrong.

What does it all mean? Notwithstanding last week’s misfire, I’m again going to channel Carnac the Magnificent. From my vantage point (this week), it doesn’t appear as if the Court wants to take on Chevron directly; rather, the Court seems to be open to narrowing the doctrine.

To this end, Justice Gorsuch indicates some potential limits. For example, Chevron might be denied where the government forsakes it, or where criminal sanctions apply. While these would be welcome reforms, Gorsuch lends tantalizing hints of a much bigger limitation, one that would profoundly change the administrative state for the better. Namely, he suggests that Chevron may be unwarranted where the government’s interpretation ushers in the umpteenth reversal in a major regulatory policy.