by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A major criticism of the administrative state is that it consists of unelected officials with the power to govern virtually every aspect of modern life without serious oversight by the federal courts. That issue might arise during the upcoming Senate Judiciary Committee hearings for Judge Amy Coney Barrett, President Donald Trump’s nominee for the current opening on the U.S. Supreme Court.
Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit, has been on the bench for less than three years, so her judicial oeuvre is relatively small. Nonetheless, critics of her nomination — both those fearful of how she might vote as a Supreme Court justice and those who just hate Trump and anything he does — will dissect every paragraph and sentence of every opinion and article she has written. …
… Barrett’s authored opinions give no reason to believe she automatically accepts or rejects an agency’s interpretation of the law. For example, consider her dissenting opinion in the controversial case of Cook County, Illinois v. Wolf. The administrative law issue in Wolf involved the proper application of the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which directs federal courts to accept a reasonable interpretation of an ambiguous federal law, even if the court would read the law differently. …
… Barrett did not reflexively accept the DHS rule as being reasonable. Instead, she wrote a 39-page dissent, rigorously analyzing the relevant statutory text, its development across history, and various commentators’ descriptions of the immigration laws. Only then did she conclude that DHS’s interpretation was reasonable.
The opinions Barrett has joined also do not suggest she uncritically accepts an agency’s interpretation of the law.