From the transcript (I have corrected what appear to be errors in the transcription):
Question: Would you overturn [Chevron]? Is that what this means when you talk about it is time to face the behemoth?
Gorsuch: Senator, my job is when I see a problem to tell my boss. Like any good employee. I conceived it was to say hey, listen to implications. Real life implications of what we are doing here.
Question: you would be the boss if you were supreme court justice. And what rule do you think should replace it? De novo review? What is better?
Gorsuch: Senator, I don’t prejudge it. I can tell what you did preexist it is Skidmore deference, an opinion by Justice Jackson, actually. That’s what preexisted. There was deference before. And we had the administrative state for 50 years. And agencies would issue rules and decisions. I don’t know what all the consequences would be. I wasn’t thinking about being a supreme court justice then. I was identifying an issue for my bosses. So fortunate to become a justice. I would try and come at it with as open a mind as man can muster. And I would tell you and remind you that I [keep?] in mind David Sentelle [who wrote an opinion at the beginning of the year and] then by the end of the year wrote for the full court reversing himself. Some people think that doesn’t show a lack of sufficient steel. I think that shows a lack of ego that a judge should bring to bear when he or she puts on the robe. That’s what I would commit to you.
The answer is evasive, to say the least. No, he’s not “identifying an issue for [his] bosses,” who are fully aware of it. Gorsuch wants to overturn Chevron. And not because he thinks that Skidmore deference is adequate. He’s attacking Chevron because he opposes administrative power.
In Gorsuch’s Gutierrez concurrence, he argues that Chevron should be overturned. He makes the remarkable argument that it is inconsistent with Schechter Poultry, one of the Supreme Court’s two 1935 anti-New Deal non-delegation cases:
The Supreme Court once unanimously declared that a statute affording the executive the power to write an industrial code of competition for the poultry industry violated the separation of powers. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-42 (1935). And if that’s the case, you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.
The argument is that if Congress supplies an “intelligible principle” for interpreting a statute, as it is supposed to do under the non-delegation doctrine, then deference can only permit agencies to violate the intelligible principle, since otherwise courts can hold them to it.
Gorsuch, unlike other circuit judges who from time to time are asked to apply the non-delegation doctrine, does not mention that Schechter Poultry has never been followed by the Supreme Court but instead consigned to the dustbin of history. He thinks that this case should take precedence over Chevron, a 1984 case that the Supreme Court has reaffirmed on numerous occasions. This makes no sense as a matter of precedent, of course. The real point is that, in Gorsuch’s view, Chevron was wrongly decided. He continues:
Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state…. It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design and, as Justice Frankfurter once observed, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions” imposed by the Constitution….
Unlike Schechter Poultry, which—in Gorsuch’s view, I strongly suspect—is not at all hard to square with the Constitution of the founders’ design. Gorsuch is opposed to administrative regulation, full stop.
You might even agree with Gorsuch but wish he would state his views clearly to the senators: that, unless he changes his mind (“I would try and come at it with as open a mind as man can muster”), his judicial philosophy will throw into doubt the structure of modern government—from EPA regulations, to financial regulations, to consumer protection.
All of which means that we can expect Gorsuch to join Justice Thomas as one of only two justices to seriously oppose the administrative state in the last 50 years, at least.
Update: Chris Walker points to another exchange, here. Gorsuch goes into a bit more detail, but only to replicate the view he expresses more clearly and forcefully in his Gutierrez concurrence.