Gorsuch's collision course with the administrative state

Long ago, in Marbury v. Madison, Chief Justice John Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Judges cannot give up making their own judgments about statutes, as required by Chevron, without sacrificing their very duty as judges.

Even worse, Chevron establishes judicial bias. Judge Gorsuch has been silent on this problem. But where the government is a party to a case, Chevron requires judges to defer to the agency’s interpretation. This amounts to a precommitment to the government’s legal position. Chevron, in other words, forces judges to engage in systematic bias favoring one party — the most powerful of parties — in violation of the Fifth Amendment’s due process of law. Chevron deference is thus Chevron bias.

Of course, judges regularly defer to precedent, but that is deference to the judgment of another judge. It is quite another thing, and clearly unconstitutional, for them to defer to the judgment of one of the parties — indeed, to favor its legal position whenever it comes into court.

Chevron therefore cannot be reduced merely to the separation-of-powers concern — important as that is. Chevron bias also raises serious civil liberties issues, because each party has a constitutional right to an impartial judicial proceeding.

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