# Gorsuch confirmation hearing **URL:** \ **Category:** Great Debates\ **Created:** [March 20, 2017, 10:05pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653 "2017-03-20T22:05:35Z")\ **Posts on this page:** 20\ **Page:** 22
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [March 28, 2017, 10:15pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/421 "2017-03-28T22:15:51Z")
> [@Bricker](#): > > Holy shit. > > I am absolutely stunned. And profoundly disturbed. > > But I can tell you that if a German court ruled against recognizing those marriages, I’d be fine with that, absent some sort of unimaginably compelling reasons. > > Holy shit. Why are you disturbed and stunned? You gotta get out of the house if teen weddings are a surprise. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 28, 2017, 10:17pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/422 "2017-03-28T22:17:21Z")
> [@Thing\_Fish](#): > > So where the law is ambiguous and an agency is interpreting it in a reasonable way, a judge is obligated to stop them from doing that and interpret the ambiguous law in some unreasonable way in accordance with his personal ideological beliefs?😕 > > I’m guessing the real argument here is about how common it is for laws to be genuinely ambiguous; otherwise, I can’t imagine how anyone could object to this doctrine. No, he’s saying it’s the judge’s job to decide whether or not their “reasonable” interpretation is correct. ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [March 28, 2017, 10:28pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/423 "2017-03-28T22:28:15Z")
> [@octopus](#): > > Why are you disturbed and stunned? You gotta get out of the house if teen weddings are a surprise. Not everyone can live in West Virginia. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 28, 2017, 10:35pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/424 "2017-03-28T22:35:40Z")
> [@Thing\_Fish](#): > > So where the law is ambiguous and an agency is interpreting it in a reasonable way, a judge is obligated to stop them from doing that and interpret the ambiguous law in some unreasonable way in accordance with his personal ideological beliefs?😕 > > I’m guessing the real argument here is about how common it is for laws to be genuinely ambiguous; otherwise, I can’t imagine how anyone could object to this doctrine. Chevron deference allows an administrative agency to interpret a law in any way that is not arbitrary/capricious, etc. So if there are X, Y, and Z possibilities, even if X is say, 80/20 more reasonable than Z, then the courts must defer and go with Z if the agency says so. This puts the enforcement and interpretation of a law in a single branch of government. Remember, legislative creates the law, judicial interprets the law, and executive enforces the law. Chevron deference allows the executive to both enforce, and interpret the law. In [Gutierrez-Brizuela v. Lynch](https://scholar.google.com/scholar_case?case=11495806271514705762&q=14-9585&hl=en&as_sdt=4,106,120), Gorsuch wrote both the majority opinion, and a concurring opinion. The majority opinion applied Chevron deference as required by precedent, however his concurring opinion was a criticism of Chevron. From the concurrence: > [@](#): > > There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit 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 framers’ design. Maybe the time has come to face the behemoth. > > … > > All of which raises this question: what would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute. But de novo judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election. And an agency’s recourse for a judicial declaration of the law’s meaning that it dislikes would be precisely the recourse the Constitution prescribes — an appeal to higher judicial authority or a new law enacted consistent with bicameralism and presentment. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things. Here is a [SCOTUSblog article](http://www.scotusblog.com/2017/03/roots-limits-gorsuchs-views-chevron-deference/) on the same topic: > [@](#): > > In a way, Chevron deference is responsible for making the views of the current head of the Environmental Protection Agency far more important than the content of the Clean Air Act in terms of setting national anti-pollution policy. Gorsuch’s opinion in Gutierrez-Brizuela points out that this result essentially inverts the conventional view of the separation of powers, under which Congress sets national policy through statutes, the courts interpret those statutes to “say what the law is,” and the executive branch carries the law into execution, rather than revising it from one administration to the next according to its policy whims. > [@Fotheringay-Phipps](#): > > 😕 > > Kelo was a left wing decision, opposed by the RW on the court. It may be my mistake, but I was under the impression that since that time, those on the left grew to oppose Kelo. I could be totally wrong on that. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 28, 2017, 10:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/425 "2017-03-28T22:38:01Z")
I think it would be more fair to make a rule that says: “If the law is found to be ambiguous in a particular case, it would have to be sent back to the legislature so it can fix the ambiguity in the law by amending it. If the legislature doesn’t do that in a reasonable period of time, the case will be dismissed.” ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 28, 2017, 10:42pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/426 "2017-03-28T22:42:05Z")
> [@Okrahoma](#): > > I think it would be more fair to make a rule that says: “If the law is found to be ambiguous in a particular case, it would have to be sent back to the legislature so it can fix the ambiguity in the law by amending it. If the legislature doesn’t do that in a reasonable period of time, the case will be dismissed.” I think that would be rather unworkable. A particular case may be dismissed, but the law would still exist and the ambiguity would still cause disruption until resolved. The court is supposed to resolve questions of law. Your suggestion would neuter the court significantly as a co-equal branch of government. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 28, 2017, 10:44pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/427 "2017-03-28T22:44:17Z")
> [@Bone](#): > > I think that would be rather unworkable. A particular case may be dismissed, but the law would still exist and the ambiguity would still cause disruption until resolved. The court is supposed to resolve questions of law. Your suggestion would neuter the court significantly as a co-equal branch of government. The legislature is always able to change a law if it thinks the court’s ruling is out of whack with the law’s intent. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 28, 2017, 10:44pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/428 "2017-03-28T22:44:26Z")
> [@Bone](#): > > I think that would be rather unworkable. A particular case may be dismissed, but the law would still exist and the ambiguity would still cause disruption until resolved. The court is supposed to resolve questions of law. Your suggestion would neuter the court significantly as a co-equal branch of government. If there is a genuine ambiguity in the law, the court, by resolving it, is in practice taking over the function of the legislature. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 28, 2017, 10:46pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/429 "2017-03-28T22:46:32Z")
> [@Bone](#): > > I think that would be rather unworkable. A particular case may be dismissed, but the law would still exist and the ambiguity would still cause disruption until resolved. The resolution of ambiguity should not take a long time by the legislature. Definitely a lot less effort than writing the law in the first place, and probably a lot less controversial. ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [March 28, 2017, 10:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/430 "2017-03-28T22:47:13Z")
> [@CarnalK](#): > > No, he’s saying it’s the judge’s job to decide whether or not their “reasonable” interpretation is correct. Well, of course it is! But Bone’s original cite seemed to imply that Gorsuch would still have some issue even in the case where the agency’s interpretation was conceded to be reasonable. His followup makes it clearer that the question is one of \*how \*reasonable an interpretation must be deemed to be before judges are obligated to defer to it. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 28, 2017, 10:59pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/431 "2017-03-28T22:59:18Z")
> [@Thing\_Fish](#): > > So where the law is ambiguous and an agency is interpreting it in a reasonable way, a judge is obligated to stop them from doing that and interpret the ambiguous law in some unreasonable way in accordance with his personal ideological beliefs?😕 > > I’m guessing the real argument here is about how common it is for laws to be genuinely ambiguous; otherwise, I can’t imagine how anyone could object to this doctrine. The argument against Chevron deference is that it is the role of the judiciary to interpret laws. Application of Chevron results in the peculiar position that an agency of the executive branch can change its mind and in doing so overrule a court decision. Chevron is implicated in many administrative law cases, an area that Gorsuch has relatively little history of cases\*. In the two significant cases where he has implicated Chevron the issues have revolved around Immigration matters, far removed from typical administrative law matters. Perhaps when faced with more typical administrative law cases he will be more inclined to support Chevron? - The DC Circuit Court of Appeals is charged with most administrative law cases. It’s a part of the structure of the federal courts. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [March 28, 2017, 11:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/432 "2017-03-28T23:38:27Z")
What time is the confirmation vote held, or at least, scheduled? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [March 28, 2017, 11:39pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/433 "2017-03-28T23:39:23Z")
> [@Velocity](#): > > What time is the confirmation vote held, or at least, scheduled? April 7. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 12:49pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/434 "2017-03-29T12:49:54Z")
> [@Okrahoma](#): > > If there is a genuine ambiguity in the law, the court, by resolving it, is in practice taking over the function of the legislature. Yes its called common law. it predates the United States of America. There are ALWAYS ambiguities in the law. No law can address every conceivable situation with perfect clarity. The concept that the judiciary fills in the gaps and interprets the law is a pretty important part of a common law system (the one we have). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 2:46pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/435 "2017-03-29T14:46:06Z")
> [@octopus](#): > > Why are you disturbed and stunned? You gotta get out of the house if teen weddings are a surprise. Teen, as in eighTEEN and nineTEEN? Not surprised. As in sixTEEN? Yeah, not thrilled, but not surprised. ThirTEEN? Not sure that getting out of the house will help me reconcile that one. My son is fifteen and a genius, who nonetheless can’t handle keeping his room clean. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 29, 2017, 3:38pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/436 "2017-03-29T15:38:29Z")
Then he needs to marry someone who will clean it for him. Regards, Shodan ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 29, 2017, 3:43pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/437 "2017-03-29T15:43:03Z")
> [@Bricker](#): > > Teen, as in eighTEEN and nineTEEN? Not surprised. > > As in sixTEEN? Yeah, not thrilled, but not surprised. > > ThirTEEN? Not sure that getting out of the house will help me reconcile that one. > > My son is fifteen and a genius, who nonetheless can’t handle keeping his room clean. IMO, it’s surprising but not so shocking. These are a very small number of cases. I would guess these are all unique special circumstances, e.g. when there’s no where else for the kid to live and/or comes from a cultural background where these are accepted. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 29, 2017, 3:47pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/438 "2017-03-29T15:47:51Z")
> [@Fotheringay-Phipps](#): > > IMO, it’s surprising but not so shocking. These are a very small number of cases. I would guess these are all unique special circumstances, e.g. when there’s no where else for the kid to live and/or comes from a cultural background where these are accepted. IMO, the only purpose those laws serve is to allow men to take advantage of young girls in such circumstances. We should get them off the books post haste. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 29, 2017, 4:03pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/439 "2017-03-29T16:03:37Z")
I doubt it. I actually once knew a guy whose parents were from Morocco, who told me his grandparents got married when his GF was 16 and his GM 11. He said his GM would sometimes run away from home but his GF gave her candy so she would come back. 🙂 ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 29, 2017, 4:10pm UTC](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/440 "2017-03-29T16:10:39Z")
> [@Fotheringay-Phipps](#): > > I doubt it. > > I actually once knew a guy whose parents were from Morocco, who told me his grandparents got married when his GF was 16 and his GM 11. He said his GM would sometimes run away from home but his GF gave her candy so she would come back. 🙂 Candy: guaranteed to make any story about potential pedophilia even creepier. 😉 [Previous page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=21) [Next page](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653.md?page=23)