Trump’s Supreme Court nominee questions power of administrative agencies

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By Andrew Chung and Lawrence Hurley | NEW YORK

NEW YORK Supreme Court nominee Judge Neil
Gorsuch is known for questioning how far courts should go in
deferring to federal agencies on interpreting the law, a view
that could be important for U.S. companies and, perhaps, for
President Donald Trump.

Nominated by Trump on Tuesday to fill a vacancy on the
nation’s highest court, the 49-year-old Gorsuch is widely viewed
as a sharp-eyed jurist and a crisp writer who has the potential
to be a persuasive voice on the court.

In a recent case, Gorsuch took a dim view of a landmark 1984
high court ruling, Chevron v. Natural Resources Defense Council.
Widely cited, the ruling directed judges nationwide to defer to
agencies’ interpretation of laws that may be ambiguous. It is
known as “Chevron deference.”

Last August, in a case over immigration rules, Gorsuch
called the doctrine the “elephant in the room” that concentrates
federal power “in a way that seems more than a little difficult
to square with the Constitution.”

Showing his willingness to tackle the issue head on, he
added, “Maybe the time has come to face the behemoth.”

If Gorsuch can persuade other Supreme Court justices to
question Chevron deference, companies arguing before the high
court against federal regulations might have a better chance on
issues ranging from the environment to immigration.

At the same time, broader skepticism of deference to
agencies could have long-term consequences for Trump.

The new president is moving swiftly to reshape the federal
bureaucracy, appointing agency heads who could upend the legacy
of President Barack Obama on emissions, health care and internet
policy. The court’s views on agencies’ agendas will be critical.

“The idea that President Trump of all people would be the
one to choose a justice who might push the court to reduce the
executive power is pretty ironic,” said John Nagle, a professor
at the University of Notre Dame Law School.

If the Supreme Court were to overturn or limit the Chevron
precedent, lower courts could become more active in deciding the
ultimate meaning of a statute, making it less likely that an
agency’s view would stand, Nagle said.

“It could make it more difficult for the Trump
administration to defend some of its regulatory actions in
federal court,” said Case Western Reserve University School of
Law professor Jonathan Adler.

Republicans in Congress, particularly when Obama was in
office, frequently complained about Chevron deference. They have
even debated legislation that would override it. The House of
Representatives passed such a bill on Jan. 11, although it is
unlikely to win approval in the Senate.

Gorsuch is not the first judge to take aim at the issue.

In 2015, the Supreme Court ruled against the Environmental
Protection Agency over its regulations for limiting pollution
from mercury and other toxic materials. At that time,
conservative Justice Clarence Thomas wrote a separate opinion
saying the government’s position “raises serious questions about
the constitutionality of our broader practice of deferring to
agency interpretations of federal statutes.”

While Thomas has argued the doctrine threatens the
Constitutionally-mandated separation of the different branches
of government, Chief Justice John Roberts and Justice Anthony
Kennedy have said it may threaten individual liberties, said
Andrew Grossman, a conservative lawyer who has represented
companies challenging government regulations.

“Gorsuch may be the one to bring the court together on
fundamental questions of administrative power that have sparked
so much controversy and divisiveness in recent years,” Grossman

Some court-watchers say that in practice the justices are
inclined to support executive actions that are in keeping with
their own views. But an analysis of their votes carried out by
Jack Beermann, a professor at Boston University School of Law,
showed that such an outcome is not uniform.

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