Judge Gorsuch and the Chevron Two-Step

Confirmation hearings for Neil Gorsuch will begin in about 10 days, and in addition to the usual leftist animus toward anyone who might be faithful to constitutional originalism, there is likely to be some vigorous questioning about Gorsuch’s attitude toward the “Chevron doctrine,” which is now one of the pillars of the administrative state. Instead of holding up Richard Epstein’s book Takings, as Joe Biden did with Clarence Thomas in an effort to make Thomas repudiate his philosophy, I wouldn’t be surprised if the banned book this time will be Philip Hamburger’s Is Administrative Law Unlawful?

The irony of the 1984 Chevron v. NRDC decision is that the environmentalists were on the losing side of that case—they had sought tougher EPA enforcement of the Clean Air Act, and the Court said No, EPA can do what it wants. Now this doctrine of “deference” to the bureaucracy is the most important thing the left has going for it. So even when the left loses, it still wins. This shows just how far around the bend things have gone.

I could bore you with the details of how the “Chevron doctrine” works. Or you can watch a group of talented NYU law students unleash their musical treatment, in The Chevron Two-Step:

I think Judge Gorsuch should simply refer Democratic senators to this video for his answer, as it brings up a good question in the third verse about the constitutional weakness of Chevron:

WAIT–constitutional avoidance
MORE LIKE, congressional annoyance
But Congress can’t be delegatin’ all the big questions;
They should make policy that’s why we have elections.
So so long as the agency’s resolution doesn’t get too close to the constitution,
Put your hands on your head and crack a yawn;
We just kickin’ back, doin’ the Chevron.

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