Gorsuch’s Buffington Dissent a Well-Written Critique of Chevron Deference

I believe that the separation of powers is essential to our liberty. This is why I have often criticized the routine declaration of states of emergency1 and a result-oriented analysis of whether this or that official has the power to take a certain action.((See The Misuse of Emergency Powers (“it is increasingly uncommon for those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy.”)) I have, on occasion,((See Are We Done with Democracy? and Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner.)) warned about giving too much power to administrative agencies. Usually, the grant of power is in the form of a delegation of legislative power to the executive, but the courts are also partially responsible as they will “defer” to administrative action, including the agency’s interpretation of the statute(s) it administers. On the national level this deference is based upon Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).

While I do not assert that the interpretation of a statute is solely a judicial function (the agency administering a statute must certainly interpret it in order to function), I do not believe that an agency’s interpretation is entitled to significant, indeed possibly any, deference by the courts, if for no other reason than because a new administration may change the agency’s interpretation significantly. If courts defer to the interpretation de jour, then they have effectively allowed the executive to change the meaning of a statute.

Last week Justice Gorsuch issued an opinion dissenting for the denial of a petition for certiorari((The Supreme Court is not required to hear every case in which the losing party in the court of appeals seeks review. Most cases the Supreme Court hears are by way of a writ of certiorari, the grant of which requires the affirmative vote of four justices.)) in Buffington v. McDonough. The dissent makes a compelling case for the reconsideration of Chevron deference; it is well worth reading.

Jay Bohn

November 14, 2022

  1. COVID-19 and Emergency Powers, COVID-19 and Emergency Powers II – Not Much Has Changed, COVID-19 and Emergency Powers III – Still Not Much Has Changed, The Misuse of Emergency Powers, and Superstorm Sandy, Ten Years Later: The State of Emergency Continues [↩]