What Gorsuch Means for Business, Regulators

Judge Neil Gorsuch, President Donald Trump’s choice to take the open Supreme Court seat left by the late Antonin Scalia, has modeled his career as a jurist on his late predecessor’s. That spells good news for American business but bad news for independent administrative agencies.

Gorsuch is more well known for his writing on subjects including religious liberty and euthanasia, less so for business law. Looking at his past rulings, however, shed light on a history friendly to business and suggest corporations may soon have a friend on the Supreme Court.

Reports from the Wall Street Journal show Gorsuch opposing class action lawsuits over alleged violations of securities law, which he referred to as “opportunistic shakedowns” by lawyers. Other previous cases show Gorsuch to be likely to force more consumers to resolve disputes with companies through arbitration rather than the court system.

Gorsuch’s questioning of the “Chevron deference” doesn’t bode well for administrative agencies like the Environmental Protection Agency, Federal Communications Commission, or the Consumer Finance Protection Bureau. The Chevron deference is considered a cornerstone of administrative law which states when a given law or rule is unclear, the courts should defer to the agency in question as they are presumably expert.

Critics of the concept, including Gorsuch, argue it give too much power to administrative agencies and shields them from proper judicial oversight.

Gorsuch believes “broadly worded enforcement statutes” have meanings that can be understood from their texts without interpretation.

As much as Gorsuch follows Scalia’s example, he differed in that Scalia supported Chevron as “important for maintaining the smooth functioning of the administrative state,” according to a Forbes report.

Gorsuch is one of a small group of judges beginning to question the constitutionality of the power of and the deference to unelected bureaucrats. Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals wrote a decision last year declaring the structure of the Consumer Financial Protection Agency unconstitutional, a decision leading to an ongoing court battle involving several attorneys general and Democratic lawmakers coming to the defense of the CFPB.