George Will points out a glaring problem with Merrick Garland's Supreme Court nomination, namely Garland's excessive affection for the lamentable Chevron deference doctrine:
“Chevron deference” ... actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language. ...
Bloomberg Law likewise thinks that Garland's appointment would lead to more judicial deference to agencies:
President Barack Obama's nomination of Merrick B. Garland to the U.S. Supreme Court could spell good news for the Securities and Exchange Commission, given the federal appeals court judge's long history of deferring to administrative agencies.
Why's that a bad thing? Let's go to Senator Mike Lee:
Over the course of the twentieth century, and accelerating in the twenty-first, Congress has handed too many of its constitutional responsibilities to the Executive Branch, creating a “headless fourth branch” of the federal government, untethered from any clear lines of accountability connecting policy, policymakers, and the people.
This upending of our constitutional order has led not only to bad policy, but to deep public distrust in our governing institutions.
Although Congress bears primary responsibility for this toxic state of affairs, the other two branches share in the blame.
In particular, the Supreme Court’s doctrine of “Chevron deference” has helped to midwife this shadowy fourth branch, by requiring Courts, under certain circumstances, to surrender their Article III constitutional power of judicial review to executive agencies.
Chevron deference is hardly the only problem with the administrative state, nor is it the biggest. But it may be the one with the clearest and most obvious fix.
Lee supports legislation (as described in this briefing paper) that would require courts "hearing challenges to agency actions to review 'de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.'" So do I. And that's a reason for opposing Merrick Garland's nomination.
