Trump administration judicial nominees and the administrative state (2018)
| Administrative State |
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| Five Pillars of the Administrative State |
| • Nondelegation • Judicial deference • Executive control • Procedural rights • Agency dynamics |
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In March 2018, The New York Times released a report outlining comments officials in the Trump administration had made regarding judicial nominees and the power of the administrative state.
White House counsel Don McGahn, who had overseen the administration’s judicial selection process, described a plan to seek out nominees concerned about the size and scope of the federal government and its regulatory activities. Referring to the federal bureaucracy, sometimes called the administrative state, McGahn said: “It’s kind of its own branch of government now, and those decisions tend to trend to the left.”
About half of Trump’s judicial nominees had come from the membership of the Federalist Society, a conservative membership organization that focuses on legal issues. During a June 2016 interview with Breitbart News Radio, then-candidate Trump promised of his presidency, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
Neil Gorsuch, who was nominated by Trump to the U.S. Supreme Court in 2017, was the first of the administration’s nominees to be selected using this process. Gorsuch, who previously served as a federal judge on the Tenth Circuit Court of Appeals, had criticized various forms of judicial deference to federal agencies. For example, Gorsuch had criticized the principle of Chevron deference, which compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the 1984 Supreme Court case Chevron v. Natural Resources Defense Council.
In an opinion as an appellate judge, Gorsuch wrote that Chevron violated the separation of powers, allowing “executive bureaucracies to swallow huge amounts of core judicial and legislative power.” After joining the Supreme Court, Gorsuch tried to encourage reconsideration of the Chevron doctrine. He joined Justice Clarence Thomas in 2018 in dissenting from and criticizing the court’s decision not to take a case that would have allowed the court to reconsider its deference doctrines.[1]
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