Gorsuch strikes a blow against the administrative state

The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating. Gorsuch’s principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: “Chevron deference.”

This is the policy (named for the 1984 case in which the Supreme Court propounded it) whereby courts are required to defer to administrative agencies’ interpretations of “ambiguous” laws when the interpretations are “reasonable.” Gorsuch has criticized this emancipation of the administrative state from judicial supervision as “a judge-made doctrine for the abdication of judicial duty.” It also is an incentive for slovenly lawmaking by a Congress too lazy or risk-averse to be precise in making policy choices, and so lacking in institutional pride that it complacently sloughs off its Article I powers onto Article II entities. Gorsuch wants Article III courts to circumscribe this disreputable behavior.

Gorsuch represents the growing ascendency of one kind of conservative jurisprudence, “judicial engagement,” over another kind, “judicial deference.”