On January 11, 2017 (in the interregnum during which Congress was in session but Trump had not yet been inaugurated), the Republican-controlled House of Representatives passed The Regulatory Accountability Act of 2017 by a vote of 238-183, a bill which would, inter alia, repeal Chevron deference. Twenty days later, after a tumultuous first week and a half in office, President Donald Trump selected Judge Neil Gorsuch as his nominee to fill the seat on the Supreme Court left empty since Justice Antonin Scalia’s death nearly a year ago. What do these events have to do with one another?
There are a great many things to be said about Neil Gorsuch. He is highly credentialed, in the most conventional way - a judge on the Tenth Circuit Court of Appeals since 2006; a pure Ivy-Leaguer with a Columbia undergraduate degree, a Harvard J.D. (he and Barack Obama were in the same J.D. class, 1991) and a Marshall Scholarship to Oxford; and like three other sitting Justices, a former Supreme Court clerk (in his case, for the late Justice Byron White and current Justice Anthony Kennedy). He is also a straight White married Episcopalian man (which almost counts as a diversity hire on a court that is now entirely Jewish and Catholic). And he is a principled opponent of Chevron deference - and at this moment, with this President, that makes him, if not a Trojan horse, at least a gift horse some of us on the left might be wise not to look too hard in the mouth.
To understand why, we need to refresh ourselves about Chevron deference, a doctrine almost as dreaded by law students as Erie and the Rule Against Perpetuities combined, and one at which Judge Gorsuch took direct aim in a case for which he wrote the majority opinion (and a concurrence) just last August. I believe what he has to say there helps demonstrate why we have reason to hope he will be a robust defender of the separation of powers and a champion of an independent judiciary as a check on the executive.
In today’s administrative and regulatory state, the executive branch does not merely carry out the laws enacted by Congress. Executive agencies - like the Department of Education, the Department of Justice, the Treasury Department, and so on - promulgate the thousands upon thousands of regulations that fill the Code of Federal Regulations. Chevron deference takes its name from a 1984 case upholding a Reagan deregulatory approach to air pollution, but the principle goes back further. It has now evolved into the multi-step process used by the federal court in evaluating a challenged regulation based on a civil statute (it does not apply to criminal laws). It has two basic prerequisites for deference: the statute in question must be “ambiguous,” and the agency’s view must be “reasonable.” In 2001, U.S. v. Mead Corp. added a multi-factor test for determining just which civil statutes are covered by the doctrine. Complicating matters still further, agency interpretations sometimes conflict with prior judicial interpretations of the same statute. Which prevails? The 2005 case National Cable & Telecomms. Association v. Brand X Internet Services permittted an executive agency to overrule a judicial precedent in favor of the agency’s preferred interpretation.
The 2016 case of Gutierrez-Brizuela v. Lynch gave the 10th Circuit a chance to rein in Chevron/Brand X (or at least resist the doctrine's expansion), and gave Judge Gorsuch a chance to go much further than that (though his fellow judges didn’t go along for that ride). I’ve excerpted his concurrence at some length, both to convey a sense of his opinion-writing style and to let him speak in his own words about Chevron and the respective roles of the three branches of government.
As Judge Gorsuch sees it
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….
In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decisionmakers was no accident…. [T]o resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.
Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment—and raising along the way, too, grave due process (fair notice) and equal protection problems. … It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers....
Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X's terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies. [case omitted] By Brand X's own telling, this means a judicial declaration of the law’s meaning in a case or controversy before it is not ‘authoritative,’ ... but is instead subject to revision by a politically accountable branch of government….
Quite literally then, after this court declared the statutes’ meaning and issued a final decision, an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals. If that doesn’t qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we’ve forgotten what might.Instead, on Judge Gorsuch’s view,
When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation. Admittedly, the legislative process can be an arduous one. But that’s no bug in the constitutional design: it is the very point of the design. The framers sought to ensure that the people may rely on judicial precedent about the meaning of existing law until and unless that precedent is overruled or the purposefully painful process of bicameralism and presentment can be cleared. Indeed, the principle of stare decisis was one ‘entrenched and revered by the framers’ precisely because they knew its importance ‘as a weapon against ... tyranny.’
Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions. …. [One] must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail. Neither, too, will agencies always deign to announce their views in advance; often enough they seek to impose their ‘reasonable’ new interpretations only retroactively in administrative adjudications. Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.Judge Gorsuch argues further that even for one sympathetic to a position in which executive agencies make (rather than interpret law), Chevron is unsatisfactory.
For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. …. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.As he puts it more succinctly, “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”
Ultimately, Judge Gorsuch concludes that Chevron is a violation of the separation of powers, both ceding excessive legislative authority to the executive and depriving the judiciary of its proper role. Specifically, Chevron
invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. ... 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.'After rehearsing a number of additional legal and practical problems with Chevron, Judge Gorsuch asks,
All of which raises this question: what would happen in a world without Chevron? ... 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.It is impossible to read Judge Gorsuch on these subjects and not feel he has the intellectual fortitude, at least, to use the Supreme Court to rein in a runaway Trump train - not least in the immigration area. For as it happens, Gutierrez-Brizuela was an immigration case. The Bureau of Immigration Appeals, an administrative court organized under the Department of Justice, eliminated a remedy formerly available to certain aliens - but only after Hugo Gutierrez-Brizuela had applied for it, under the authority of a prior case. The BIA sought retroactive application of Chevron/Brand X deference. Judge Gorsuch, writing for the 10th Circuit, refused to extend that deference so far - thereby preserving Gutierrez-Brizuela’s opportunity for an administrative adjustment of his status, notwithstanding his illegal entry.
It might be that providing this remedy to an undocumented immigrant from Mexico was merely incidental to Judge Gorsuch’s real aim: getting rid of Chevron/Brand X, just as the Regulatory Accountability Act seeks to do, and no assurance should be drawn from his willingness to second-guess immigration policy along the way. Worse yet, he may turn out to have no problems with an overreaching executive when the policies are ones he favors, or ones adopted by a Republican President after a return of the Congress to Democratic control. Judge Gorsuch may be revealed as a craven hypocrite of McConnellite proportions - feigning outrage at the very conduct he hastens to engage in when it suits his interests. But it is also at least possible that Judge Gorsuch will prove to be as good as his many, many words. With twenty executive orders signed in just the first ten days, an intelligent jurist committed to de novo review of agency action, with a sense of the judicial role both constrained and energized by separation of powers principles, may be the best we can hope for. Trump may live to regret this choice more than the rest of us do.