Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016). That was an immigration appeal where he argued that Chevron ought to be revisited because it “permit[s] 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.” Those who regularly watch the Supreme Court’s docket are waiting with bated breath to see if Justice Gorsuch can convince his colleagues that the issue merits the Court’s review.
But Wisconsin’s supreme court might beat Justice Gorsuch to the punch. In April, in an order granting a petition for review in Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, No. 2015AP2019 (Wis. Apr. 24, 2017), an appeal from the Wisconsin Tax Commission, the court asked the parties to brief a similar issue:
IT IS FURTHER ORDERED that in addition to the issue identified in the petition for review, the parties are directed to brief an additional issue: Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?
Tetra Tech concerned the meaning of “processing” in Wisconsin’s sales-and-use-tax statute. The court of appeals had applied “great weight deference” to the commission’s interpretation of the statute.
When the supreme court issued its order in Tetra Tech, only 16 days after Justice Gorsuch took the bench, we suspected that this was more than mere coincidence.