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Judge Gorsuch on separation of powers and federalism

Separation of powers and federalism have many friends of convenience. Those opposed to the current policies of the party in charge of the federal government (or a particular branch of it) will often point to these doctrines as reasons to constrain the enforcement of policies with which they disagree. When another party comes to power, those principles are often readily abandoned. We are currently experiencing that kind of transition, one that will test the durability of principled commitments to the appropriate division of authority between Congress, the executive, and the courts, and between state and federal governments. Enforcing those divisions is an important responsibility for the Supreme Court. So what could we expect from a Justice Neil Gorsuch? Although he was nominated by a president with apparently big plans for enacting significant parts of his agenda through executive action, Judge Gorsuch has expressed sustained skepticism about the power federal agencies have accumulated, particularly in derogation of the judicial role. His views on federalism, however, are less clear.

Separation of powers

Gorsuch has addressed separation of powers most extensively in the context of the division of authority between executive agencies and the courts.

Perhaps his most prominent discussion of separation of powers comes in a 2016 concurrence in Gutierrez-Brizuela v. Lynch, which will be covered in greater detail in a post on the judge’s administrative-law decisions. This is the now-famous case in which Gorsuch questioned the continuing validity of the doctrine, under Chevron v. Natural Resources Defense Council, of deference to administrative agencies’ interpretations of federal statutes. One of the principal problems with the doctrine, he argued, is that it runs counter to the separation of powers the Constitution envisioned as a “vital guard against governmental encroachment on the people’s liberties.” He explained, in simple terms, the division of powers this way:

To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to 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.

He explained how this division was, in his view, threatened by doctrines that allow executive agencies to construe federal statutes (and to change their interpretation when administrations change political hands) in ways that bind the judiciary:

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. Conversely, what would happen if politically unresponsive and life-tenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. 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. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people. See The Federalist No. 47 (James Madison) (“No political truth is … stamped with the authority of more enlightened patrons of liberty” than the separation of powers).

A year earlier, Gorsuch had sounded some of the same themes in a decision for the court in De Niz Robles v. Lynch. In a long and thoughtful opinion, Gorsuch answered a question he posed in the initial lines of the decision: “In our constitutional order legislative enactments normally apply only prospectively while judicial decisions also bear retroactive application. But what’s the rule when an executive agency exercises delegated legislative policymaking authority in what looks like a judicial proceeding?” Gorsuch noted in his opinion that the Constitution does not speak directly to the question, “[p]erhaps because the framers anticipated an Executive charged with enforcing the decisions of the other branches—not with exercising delegated legislative authority, let alone exercising that authority in a quasi-judicial tribunal empowered to overrule judicial decisions.” He then went on to throw some serious shade on Chevron and National Cable & Telecommunications Association v. Brand X (a Supreme Court decision allowing agencies to change their interpretation of a statute without regard to how courts have construed it): “Indeed, one might question whether Chevron step two muddles the separation of powers by delegating to the Executive the power to legislate generally applicable rules of private conduct. … And whether the combination of Chevron and Brand X further muddles the muddle by intruding on the judicial function too.” Boxed in by those decisions, Gorsuch turned to other sources of law to decide what presumption applies to the retroactivity of an agency rule adopted in an administrative adjudication:

Coming at it from another angle, if the separation of powers doesn’t forbid this form of decisionmaking outright, might second-order constitutional protections sounding in due process and equal protection, as embodied in our longstanding traditions and precedents addressing retroactivity in the law, sometimes constrain the retroactive application of its results?

He and his colleagues concluded that “the answer is yes.” Specifically, the court held that a presumption against retroactivity applies “when Congress’s delegates seek to exercise delegated legislative policymaking authority” authorized by Chevron.

The Gutierrez-Brizuela concurrence and De Niz Robles opinion were presaged by a concurrence in an earlier case, United States v. Hinckley, in 2008. The case concerned a provision of the Sex Offender Registration and Notification Act that delegated to the U.S. attorney general certain powers regarding the retroactive effect of the statute’s registration requirement. Gorsuch explained that taking a narrower view of the breadth of that delegation was consistent with a court’s obligation to avoid interpreting statutes in ways that create constitutional problems. Gorsuch wrote that under the defendant’s broader interpretation, “the Attorney General has, as the Eleventh Circuit conceded, unfettered discretion to determine both how and whether SORNA [is] to be retroactively applied,” could decide “willy nilly” which offenders were required to register, and could even“change his or her mind on this question, making the statute variously prospective and retroactive, as administrative agencies are normally entitled to do when Congress delegates interpretive questions to them.” Notably, in Reynolds v. United States, in 2012, the Supreme Court eventually weighed in on the retroactivity question, rejecting the U.S. Court of Appeals for the 10th Circuit’s view of the statute, over a dissent from Justice Antonin Scalia (joined by Justice Ruth Bader Ginsburg) that echoed Gorsuch’s non-delegation concerns.

That Gorsuch has perceived a potential non-delegation problem with allowing an agency to change its position is particularly interesting, as it is an established principle of administrative law that becomes particularly relevant when (as now) control over the executive branch switches parties.

At the same time, Gorsuch has voiced other concerns about the modern administrative state. In Caring Hearts Personal Home Services, Inc. v. Burwell, in 2016, he mused over the multitude of administrative regulations, noting that the “number of formal rules these agencies have issued thanks to their delegated legislative authority has grown so exuberantly it’s hard to keep up. The Code of Federal Regulations now clocks in at over 175,000 pages.” Consistent with the writings described above, he noted that for “some, all this delegated legislative activity by the executive branch raises interesting questions about the separation of powers,” quoting concurrences from Justices Clarence Thomas and Samuel Alito, as well as his own opinion in De Niz Robles. In addition, he added, the vast number of rules raises “troubling questions about due process and fair notice—questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all this churning and changing ‘law.’” In the Medicaid reimbursement case before the panel, he wrote:

[T]he government itself—the very “expert” agency responsible for promulgating the “law” no less—seems unable to keep pace with its own frenetic lawmaking. A world Madison worried about long ago, a world in which the laws are “so voluminous they cannot be read” and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.

In a similar vein, in United States v. Baldwin, in 2014, Gorsuch mused about federal agencies’ authority to issue regulations that can be enforced through criminal prosecutions. In that case, a defendant was criminally convicted of violating certain regulations Congress had authorized the General Services Administration to promulgate. “Can Congress so freely delegate the core legislative business of writing criminal offenses to unelected property managers at GSA?” Gorsuch wondered:

Might this arrangement, though arrived at with Congress’s assent, still blur the line between the Legislative and Executive functions assigned to separate departments by our Constitution? Thanks to this and many other similar and similarly generous congressional delegations, the Code of Federal Regulations today finds itself crowded with so many “crimes” that scholars actually debate their number.

However, because the court was able to resolve the case on other grounds, “these curiosities” turned out to be “no more than a side show” in the case.

Turning to other aspects of separation of powers, Gorsuch has also relied on the principle as supporting his commitment to a very strict form of textualism in interpreting federal statutes. For example, in 2016, in Lexington Insurance Company v. Precision Drilling Company, L.P., Gorsuch wrote that the plain text of a statute should be enforced even if it leads to “absurd” consequences a court thinks the legislature could not have intended:

To label a statute’s consequences “absurd,” a court usually must again engage in the doubtful business of guessing at hidden legislative intentions, offering this time the particular guess that the legislature couldn’t possibly have “intended” a particular consequence to flow from its handiwork. And guesses about legislative intentions are, as we’ve seen, never a proper basis for overruling plain statutory language. Any attempt to use absurdity doctrine to overrule plain statutory text would invite all the well-documented problems associated with trying to reconstruct credibly the intentions of hundreds of individual legislators. Deploying the doctrine in this fashion would also, like all judicial efforts to assert the primacy of hidden intentions over plain text, risk offending the separation of powers by purporting to endow a court with the power to disregard a possible statutory application not because of its linguistic implausibility but because of a judgment about the implausibility of its consequences as a matter of social policy—a judgment that seems a good deal more legislative than judicial in character.


Judge Gorsuch has written less often and expressly about federalism – the separation of authority between states and the federal government. (A Westlaw search of his decisions turns up only 15 cases containing the word “federalism.”) In general, he does not show the same fervor about federalism as he does about separation of powers within the federal government.

Perhaps his strongest statement in support of restricting federal power in deference to state authority came in a 2015 concurrence in Browder v. City of Albuquerque. There, Gorsuch and his colleagues allowed a substantive due process claim to proceed to trial, denying a police officer’s claim of qualified immunity in a wrongful death case arising from an accident between a police cruiser and a civilian vehicle that resulted in the death of a child. While criticizing the doctrine of substantive due process – calling it “very much uncharted,” “more than a little ‘open ended’” and a “murky area” – Gorsuch ultimately concluded that the officer’s conduct was so unjustifiable as to violate the Constitution as the Supreme Court has construed it (The officer was separately criminally prosecuted for reckless driving.). He then took the unusual step of writing a concurrence to his own majority opinion. In the concurrence, Gorsuch raised the novel suggestion that even if federal law provides a cause of action for the violation of a substantive due process right in such a case, courts should abstain from hearing the case if state law provides an adequate alternative remedy. He recognized that his suggestion ran against at least the language of a prior Supreme Court decision, Zinermon v. Burch, but thought the language dicta and ill-considered.

Abstention doctrines, under which federal judges hold back from deciding a case to avoid needless conflict with state courts, both appeal to and repulse many conservative judges. On the one hand, they are a tool for keeping federal courts out of areas conservatives think are better left to the states. On the other hand, they tend to be mostly atextual inventions of the sort conservatives frequently complain about. In Browder, there are suggestions that Gorsuch was willing to rely on an atextual absention doctrine to cabin what he believes to be an atextual constitutional right (substantive due process) and enhance a constitutionally implied value (federalism). “Losing a child is a nightmare of the darkest sort and the suffering the Browder family has had to endure is beyond words,” Gorsuch concluded. “But there’s little reason to think that state courts would fail to fulfill their oaths to see justice done in this case, at least as well as it can ever be done in a case so tragic.”

Aside from the Browder concurrence, however, Gorsuch has generally not criticized the Supreme Court’s expansive conceptions of federal power. Critics of expansive federal power most often find fault with the Supreme Court’s permissive view of Congress’ powers under the commerce clause. If Gorsuch were a federalism firebrand, one would expect to find opinions calling into question those decisions in much the same way he has criticized Chevron on separation-of-powers grounds. But there is no evidence of that. For example, federalism’s strongest proponents in the Supreme Court have often targeted their criticism on federal laws enacted under the authority of the commerce clause that criminalize conduct traditionally left to the states. Although he has spoken critically of the proliferation of federal criminal laws, Gorsuch’s extrajudicial statements have focused on due process and fairness concerns, not the offense to federalism and states’ rights. At the same time, Gorsuch has regularly voted to uphold federal criminal statutes against commerce clause challenges. Examples include United States v. Deiter, in 2014, rejecting a challenge to a felon-in-possession statute; United States v. West, in 2014, rejecting a challenge to a child pornography statute; and United States v. Maldonado-Ortega, in 2012, rejecting a challenge to a federal drug statute.

The scope of Congress’ powers under the commerce clause is supplemented by the necessary and proper clause (which authorizes Congress to enact laws “necessary and proper” to the exercise of any of its enumerated powers). Gorsuch joined a 2011 opinion addressing the scope of that clause in United States v. Carel. The decision upheld a provision of the Sex Offender Registration and Notification Act against a challenge by a person convicted of federal sex offenses. The decision spoke broadly of Congress’ power under the necessary and proper clause and concluded that the SORNA registration requirement was constitutional because it was “rationally related to” effectuating a validly enacted federal criminal statute.

Finally, as Eric Citron noted in an earlier post on Gorsuch’s jurisprudence, the judge has shown some skepticism of the so-called “dormant commerce clause” doctrine, a set of restrictions on state power the Supreme Court has deemed to be implied by commerce clause’s assignment to Congress of power over interstate commerce. As Eric observed, however, that skepticism may shed more light on the judge’s attitude about implied constitutional rights and duties than on his views on the division of power between states and the federal government.

Recommended Citation: Kevin Russell, Judge Gorsuch on separation of powers and federalism, SCOTUSblog (Mar. 15, 2017, 3:22 PM),