The Senate’s recent confirmation of Justice Neil Gorsuch, President Donald Trump’s pick to fill the United States Supreme Court vacancy, could impact the deference courts currently afford to administrative agencies in the statutory interpretation of laws within their purview.

The Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. reinforced a key principle of administrative law: if a statute is silent or ambiguous on an interpretative point, but a federal agency has provided administrative interpretation, courts will defer to the agency interpretation as long as the “agency’s answer is based on a permissible construction of the statute.” 467 U.S. 837, 843 (1984). In that case, the Supreme Court reasoned that Congress implicitly delegated this gap-filling power to administrative agencies, and “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844. The Supreme Court’s subsequent decision in Brand X extended Chevron further: Courts are also required to overrule their own statutory interpretations in favor of subsequent and conflicting agency interpretations. National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–85 (2005).

Justice Gorsuch, in his 2016 concurring opinion to Gutierrez-Brizuela v. Lynch, a case which Justice Gorsuch deems one of his “most significant” decisions, challenges the deference administrative agencies are afforded under Chevron and its progeny.1 He questions the constitutionality of administrative deference, arguing it violates the separation of powers doctrine, conflicts with Administrative Procedure Act (the APA), and raises due process and equal protection concerns. 834 F.3d 1142 (10th Cir. 2016).

Justice Gorsuch believes that Chevron and Brand X are fundamentally at odds with the protections of the separation of powers doctrine because they effectively consolidate all three branches of government into administrative agencies. Under these cases, “an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive).” Id. at 1155.

Further, Justice Gorsuch argues that Brand X, by allowing executive agencies to overrule a court’s statutory interpretation, creates “some sort of super court of appeal” constituting “an unconstitutional revision of a judicial declaration of the law by a political branch.” Id. at 1150. Relatedly, the administrative deference afforded by Chevron effectively allows executive agencies to legislate the meaning of ambiguous statutes, removing the courts from the interpretative process. Justice Gorsuch suggests the Chevron doctrine “seems no less than a Justice-made doctrine for the abdication of the judicial duty.” Id. at 1152. Justice Gorsuch also takes issue with Chevron’s reasoning that courts should infer from statutory ambiguity that Congress intended to delegate its legislative authority to administrative agencies. That intent is not explicit, and, according to Justice Gorsuch, it is in clear conflict with other Congressional text on the subject—the APA. The APA vests the court with power to “‘interpret . . . statutory provisions’ and overturn agency actions inconsistent with those interpretations.” Id. at 1153. Relatedly, Justice Gorsuch questions whether Congress could even explicitly delegate its legislative power to executive agencies without violating the Constitution. Id.

The opinion also posits that administrative deference may raise due process (fair notice) and equal protection concerns. Justice Gorsuch believes that administrative deference creates a revolving door for a statute’s meaning, creating potential due process challenges. He argues that “the people” must not only try to “conform their conduct to the fairest reading of the law,” but are also “required to guess whether the statute will be declared ‘ambiguous’(courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed ‘reasonable.’” Id. at 1152. The notice concerns are amplified because an agency may “reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.” Id. The practical implication of Justice Gorsuch’s position is that we may see a dramatic shift in how courts approach statutory interpretation for agency related questions. Justice Gorsuch’s views represent a significant departure from the long-standing deference afforded to agency interpretation. While the Chevron doctrine admitted that “[j]udges are not experts in the field,” Chevron, 467 U.S. at 865, Justice Gorsuch’s view would allow each judge to independently interpret a statute without the benefit of the agency’s institutional knowledge.