Last week Karen Harned, Executive Director of the NFIB Small Business Legal Center, testified before the Senate Judiciary Committee and explained why NFIB supports the nomination of Judge Gorsuch to the Supreme Court. Harned focused her testimony on Judge Gorsuch’s record, which has consistently noted concerns over the breakdown in the separation of powers—a problem that we’ve identified repeatedly. We’re facing a systemic problem, as the regulatory state (or “the Fourth Branch of Government”) is all pervasive in our lives. This is especially true in the business community, and all the more so for small business owners struggling to keep pace with the rising tide of regulations, and the tumult of ever-changing rules and standards.
Harned explained that NFIB joins with Judge Gorsuch’s apparent skepticism toward the deferential approach that the Supreme Court has shown—for over thirty years—in regulatory cases. In 1984, the Supreme Court handed-down its infamous decision in Chevron U.S.A. v. NRDC—siding with the Environmental Protection Agency’s interpretation of the Clean Air Act, incidentally at a time when Gorsuch’s mother served as EPA Administrator. In so doing, the Supreme Court said that courts should differ to an agency’s interpretation so long as there is some degree of ambiguity in the statutory text, and the agency’s interpretation is “reasonable.” Unfortunately, lawyers excel at finding ambiguity in language that normal people (i.e., those untainted by formal legal training) might think crystal clear. And once the agency succeeds in convincing a court that there is some ‘ambiguity’ in the statutory text, the courts usually end up adopting the agency’s interpretation.
Today Chevron represents a major thorn in the side of the small business community. Indeed, the Obama Administration relied on the Chevron doctrine when it advanced controversial interpretations of federal law to tighten environmental controls and labor standards, and we can expect future administrations to do the same if Congress refuses to enact the president’s policy initiatives. Of course, federal bureaucrats love Chevron because it means that courts likely won’t second guess the agency’s interpretation. But we believe courts should say what the law is—meaning that they shouldn’t simply rubber-stamp agency pronouncements of law. In fact, Chevron has led to a major breakdown in our constitutional system precisely because Chevron requires judges to abdicate their judicial role if the agency’s interpretation is even plausible. Instead Courts should decide upon the best interpretation, considering agency views only to the extent they may be persuasive.
The good news is that, if confirmed, we believe that Judge Gorsuch might join others on the Court and reconsider Chevron. Overturning Chevron would be a game changer and would go a long way in keeping federal bureaucrats honest. If they knew that they would not automatically get deference, federal agencies would tread more carefully when interpreting federal statutes. Instead, as things stand today, with Chevron in place, agencies all too often get away with controversial interpretations aimed at furthering the president’s policy goals rather than the goals that Congress had in mind for the American people. In fact, in those cases, the agency is usually compromising or undermining the legislative compromise hammered out in the text.