The coming debate over President Trump’s nomination of Judge Neil Gorsuch to fill a vacancy on the Supreme Court is introducing Americans to an obscure but important legal doctrine, Chevron deference.

As articulated by the Supreme Court in a series of decisions, Chevron deference gives federal regulatory agencies like the Federal Communications Commission and the Food and Drug Administration wide latitude in writing and enforcing rules that apply ambiguous legislation passed by Congress. The Supreme Court said lower federal courts should defer to an agency’s interpretation of regulations within its jurisdiction unless the agency clearly differs from what Congress intended.

Federal regulations and the agencies that write and apply them reach into almost every part of American lives. That means a move by the courts to take more responsibility for reviewing those regulations would be a major shift in federal power away from the regulators, who serve mainly in the executive branch, and toward judges, who of course are in the judicial branch

The doctrine draws its name from the case of Chevron U.S.A., Inc. v. Natural Resources Defense Councitôi (NRDC), decided by the Supreme Court in 1984, when Ronald Reagan was President. The justices ruled that the Environmental Protection Agency was within its authority in rewriting air pollution regulations that had been put in place under the previous administration of President Jimmy Carter. The NRDC, an environmental organization, had challenged the new regulations as not in line with what Congress intended in passing the Clean Air Act.

While the late Justice Antonin Scalia, who Gorsuch has been nominated to replace, was a proponent of Chevron, Gorsuch has made it clear that he views Chevron as, “an elephant in the room.”  Gorsuch argues that in our system, the courts – not regulatory agencies – are responsible for resolving ambiguities in the law. He would limit regulatory agencies to applying the law as Congress directs or as the courts interpret Congress’ intent.

Opponents of Chevron deference argue that the gives agencies too much power and threatens the system of checks and balances that is central to our system of government. Supporters counter that regulatory agencies are established to serve as experts in their fields and that courts are not equipped to second-guess them. Scalia argued that Chevron, “accurately reflects the reality of government, and thus more adequately serves its needs.”

Whatever the Senate does with the Gorsuch nomination, Chevron deference could be severely restricted by the proposed Regulatory Accountability Act of 2017, passed last month in the House of Representatives and now pending in the Senate. The bill would instruct courts that when reviewing federal laws, they should not assume that Congress intended that regulatory agencies would resolve ambiguous portions of those laws.

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