Many of Donald Trump’s actions during his first weeks as President have understandably unsettled much of the world. However, there are already hopeful signs that they will be resisted by some combination of public protest, the courts, and/or, at the very least, his successor. So the recent nomination of 49-year old Court of Appeals Judge Neil Gorsuch to the United States Supreme Court may well prove to be Trump’s most long-lasting decision to date. Supreme Court justices typically outlast the presidents who appointed them by decades. While on the court, they have the power to interpret and strike down federal and state laws affecting all manners of public life.
Judge Gorsuch’s educational and professional qualifications to serve on the Court are beyond reproach. It thus seems likely that the media will concentrate on the inevitable grilling he will receive on ideological topics typical of Supreme Court nominees – abortion, LGBTQ rights, the death penalty, states’ rights, etc. These are all matters of genuine concern. But several enterprising journalists have suggested that it is Judge Gorsuch’s views on a more esoteric but immensely important matter that propelled him to the top of Trump’s shortlist – specifically, whether and when courts should defer to administrative actors in their interpretation of their own statutory powers.
This paramount issue within “administrative law” is unlikely to be the primary focus of Gorsuch’s inevitably fraught confirmation process. But it could be an area where his views prove very consequential. The law in this area is dividing courts in Canada as much as the United States.
In essence, Gorsuch has expressed doubts about the Supreme Court of the United States’s Chevron decision, which holds that administrative agencies are owed deference in their interpretations of their home statutes, at least where that statute is ambiguous. The argument for deference is threefold. The first is the need for judicial efficiency — courts should not be second-guessing the decisions of these administrators easily. Second, the administrators are frequently experts in the subject matter of the statute to an extent not shared by the courts. Third, legislators frequently attempt to insulate the administrative tribunals’ decisions from judicial review and that needs to be respected.
But deference is not all roses are sunshine. The rule of law mandates that courts, particularly appellate courts, should have the final say on the law’s meaning. Deferring to administrative agencies arguably is a dereliction of duty on behalf of the courts. Judge Gorsuch has expressed sympathy with this view.
Strong arguments can be made for both approaches. But given the millions of decisions made by executive actors pursuant to statutory authority each year, the approach of the courts to reviewing them is hugely consequential.
The inevitable battle over Judge Gorsuch’s confirmation to the United States Supreme Court will likely concentrate on his views on constitutional law. While that is understandable, his views on administrative law may be lost in the process. This would be unfortunate. Insofar as a judge’s ideology is relevant, his or her views on administrative law are among the most significant.