As promised, President Donald Trump was quick to make his first nomination for the Supreme Court Justice to replace the late Justice Antonin Scalia: Judge Neil Gorsuch from the 10th Circuit Court of Appeals.
Having Gorsuch on the nation’s most powerful court could mean a vote against the Consumer Financial Protection Bureau. In his concurring opinion Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (Case No. 14-9585), Gorsuch called Chevron, a case that has granted agencies strong deferential power to interpret laws and regulations, an “elephant in the room.”
In Gutierrez-Brizuela, the court was facing the “thorny problem” (Gorsuch’s words) of “what to do when an executive agency, exercising delegated legislative authority, seeks to overrule a judicial precedent interpreting a congressional statute.”
In a concurring opinion to his own opinion, Gorsuch wrote that Chevron and another case (Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967) permitted “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framer’s design. Maybe the time has come to face the behemoth.”
Gorsuch further says that Chevron “seems no less than a judge-made doctrine for the abdication of the judicial duty.”
“Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law's meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative,” Gorsuch argued.
This stance toward Chevron indicates that Gorsuch – who has identified himself to be a constitutional originalist – may not favor an agency such as the CFPB having a great amount of power. At the moment, the CFPB is awaiting to hear whether the D.C. Circuit Court of Appeals’s decision in PHH Corp. v. CFPB will stand.
In that decision, the D.C. Circuit severed the removable-only-for-cause language in the Dodd-Frank Act. If that stands, then President Trump could remove CFPB Director Richard Cordray at will and the CFPB could be limited in even getting its case to the Supreme Court in the first place.