Saturday, April 08, 2017


Neil Gorsuch was confirmed as a Supreme  Court Justice.  He was very well qualified.  He will probably not be a decisive force on the Court as it is one conservative (Gorsuch) replacing another conservative, the late Anonin Scalia.  Justice Kennedy will be the swing vote in most close cases, as he has been for decades.  Kennedy can choose to join the 4 conservatives, or the 4 liberals, to get a majority.  Justices have been know to disappoint the Presidents who appointed them by switching their approach.  More conservative justices have moved left than liberal justices have moved to the political right.

About the only thing that seems clear about Gorsuch's generally conservative philosophy is his opposition to the "Chevron deference."
"Perhaps the most distinctive aspect of Supreme Court nominee Neil Gorsuch’s jurisprudence is his opposition to “Chevron deference”: the doctrine (first imposed by a 1984 Supreme Court decision) that requires judges to defer to administrative agencies’ interpretations of federal law in most cases where the law may be “ambiguous” and the agency’s position seems “reasonable.” In what is probably his best-known opinion, Judge Gorsuch denounced Chevron deference as “a judge-made doctrine for the abdication of the judicial duty.”  It is also argued that the doctrine impinges on the legislative power.  "Chevron deference allows the executive (an administrative agency in the executive branch) to usurp the power of Congress as well as that of the judiciary. Only the legislature is supposed to have the power to make law under our constitutional system."

 It's not quite that simple.  If Congress disagrees with an agency policy it can pass legislation to supersede the agency policy.  Congress retains ultimate control. Legislation supersedes regulations.  If the President vetoes the bill, Congress can override it.  With regard to judicial power, the courts maintain the power to strike down administrative regulations which go beyond the powers of Congress or otherwise violate the Constitution.   Interpreting statutes to determine whether an agency is complying with legislative mandates if ultimately a judicial function.  However, the courts have the final say no matter what. A clever judge can always beat the doctrine by asserting that the statute is not ambiguous (by interpreting legislative history to support the judges assertion) and that the agency position appears unreasonable.  "Reasonableness" and '"ambiguous" are very slippery concepts.  Judges who like the agency policy, love the doctrine.  In general, when agency policies move to the left the conservative judges howl and hate the Chevron doctrine. Conservatives tend to hate the doctrine more than liberals when agencies create liberals policies.   Liberal policies were pushed by Obama and his agency heads. Thus conservatives are on the warpath.  When they (either liberals or conservatives) don't like the policy, they hate the doctrine.  It all depends on whose ox is being gored.  IMHO, these criticisms of the Chevron doctrine are making a mountain out of a molehill and border on the naive if not the disingenuous.

"In less than two weeks, the justices will take up a Missouri church's claim that the state is stepping on its religious freedom. It's a case about Missouri's ban on public money going to religious institutions and it carries with it potential implications for vouchers to attend private, religious schools.
Other cases the court could soon decide to hear involve gun rights, voting rights and a Colorado baker's refusal to design a cake for a same-sex couple's wedding. Some of those cases may come up April 13, which could be Gorsuch's first private conference — where justices decide whether to hear a case. It takes four votes to do so, though the court does not generally announce each justice's decision"
The same-sex wedding cake case should be extremely interesting and a much needed precedent to help settle these types of very controversial cases.
Stay tuned.

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