Gorsuch Could Correct Regulatory Overreach

Most people have never heard the term “Chevron deference” and, if they have never practiced administrative law, could not be blamed.  But, in the weeks ahead we are going to hear a great deal about it.  Here’s why.

“Chevron deference” refers to a rule the Supreme Court of the United States established in the case Chevron U.S. A. v. National Resources Defense Council, Inc., 467 US 837 (1984), for the federal courts dealing with law suits against federal administrative agencies.  The “Chevron deference” rule puts the burden on the farmer, entrepreneur, or small business owner to prove the federal agency is wrong about its regulations rather than putting the burden on the agency to prove the regulations are necessary in the first place.

The reader couldn’t be blamed for asking what difference could that possibly make in a person’s day-to-day life or business.  Supreme Court nominee Judge Neil Gorsuch has explained what it means and why it is a horrible idea for family farmers, entrepreneurs, and small business owners.  Judge Gorsuch, currently serving on the U.S. 10th Circuit Court of Appeals, has been a leading voice in the judiciary calling for a change to the rule which kills jobs and has allowed federal busybodies to bully farmers and job creators. In other words, Judge Gorsuch sides with the farmers and job creators against the job-killing regulators and says courts should not automatically side with regulatory agencies.  Judge Gorsuch has questioned the constitutionality of the rule which concentrates executive, legislative, and judicial powers in the hands of executive agencies in violation of the Constitution’s separation of powers.

Judge Gorsuch would be a strong voice on the U.S. Supreme Court for the kind of clear thinking and constitutional fidelity previously supplied by the late Justice Scalia.  The Judge was appointed to the U.S. Court of Appeals in 2006 by President George W. Bush after having served as an attorney in the U.S. Department of Justice, law clerk to two U. S. Supreme Court Justices, worked in the private sector, and, having now served as an appellate judge for over a decade, authored numerous opinions for the U.S. Court of Appeals.  Judge Gorsuch is renowned for his clear and concise writing and according to his colleagues and law clerks he is also known for his good sense of humor.

The Senate has the opportunity to restore common sense to the bench and put a justice in place who will not automatically defer to unelected bureaucrats in government agencies when they want to regulate every pond on Virginia farms as a wetland and put our famers and entrepreneurs out of business.  Judge Gorsuch faced no opposition when he was confirmed by voice vote by the Senate for the Circuit Court of Appeals.  His strong academic background, degrees from Columbia, Harvard Law, and Oxford, indicates a keen mind and his record of clear common sense opinions demonstrate his mastery of the law and fidelity to the Constitution.

Minority Leader Charles Schumer (D-NY), Senator Diane Feinstein (D-CA) the Ranking Democrat on the Senate Judiciary Committee, which will hold confirmation hearings, and former Judiciary Committee Chairman Patrick Leahy (D-VT) were all in the in the Senate when Gorsuch was last confirmed. No doubt, they will ask the Judge about his position on “Chevron deference” but it would be odd, indeed, for them to claim now that such an experienced jurist was anything other than fit for the Supreme Court.  The American people will be watching closely and will not be amused by partisan shenanigans.

Judge Gorsuch deserves a fair hearing and if the Senate finds him fit, as it should, a swift confirmation.  As so many on the left have said, the Supreme Court needs nine.

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About Jim Musser

James C. Musser is a senior fellow with the Thomas Jefferson Institute for Public Policy. Musser has spent over twenty years in the public policy arena serving as Senior Staff Counsel to Congressman Jim Bunning of Kentucky and most recently acting as Special Advisor to the Chairman of the House Budget Committee. Musser previously served as Vice President at the Mercatus Center at George Mason University in Arlington, Virginia
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