The roots and limits of Gorsuch’s views on Chevron deference
on Mar 17, 2017 at 11:26 am
Not too long before he was nominated to fill Justice Antonin Scalia’s seat on the Supreme Court, Judge Neil Gorsuch published two opinions – in the same case – staking out some genuinely heterodox positions on administrative law. In the now-relatively well-known case of Gutierrez-Brizuela v. Lynch, Gorsuch wrote both the majority decision for the U.S. Court of Appeals for the 10th Circuit and his own concurrence, using the latter as an opportunity to argue against what is known in the law as “Chevron deference.”
The court’s holding in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council directs courts to defer to reasonable agency interpretations of ambiguous statutes; it is a foundational case in terms of the existing structure of American government, because it grants policymaking flexibility to the agencies that line Constitution and Independence Avenues, and reduces the relative role of courts (and the congressional statutes they are interpreting) in providing fixed stars for our core federal regulatory regimes. 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. So we have the odd situation that Gorsuch is viewed as a revolutionary thinker – as taking up arms against a rule at the heart of modern administrative law – by advocating for an understanding of American government we all (should have) learned in high-school civics.
A defender of Chevron would point out that something like its rule is necessary for the government to solve modern problems. Congress can only ever act in fits and starts, and cannot engage in day-to-day technical judgments about, say, what kind of substances are “air pollutants” and what quantity of them is dangerous to human health. So Congress instead sets out the broad policy aims, and then empowers an administrator or cabinet secretary to carry out those aims through her agency’s expertise. Requiring more of Congress is unrealistic, and letting courts freeze the meaning of ambiguous terms like “pollutant” through judicial interpretation means that Congress’ policy goals will be frustrated when times or scientific knowledge change. The core case for Chevron thus comes from big policy statutes that broadly create or empower federal agencies with technical expertise – statutes like the Clean Air Act and Clean Water Act (EPA); the Federal Communications Act (Federal Communications Commission); the Federal Power Act and Natural Gas Act (Federal Energy Regulatory Commission); the Food, Drug, and Cosmetic Act (Food and Drug Administration); or the Occupational Safety and Health Act (Occupational Safety and Health Administration). What is particularly notable about Gorsuch’s famous forays into administrative-law jurisprudence and Chevron deference is how distant they are from these fundamental applications of the doctrine.
In fact, Gorsuch’s two best-known decisions on administrative law – Gutierrez-Brizuela and De Niz Robles v. Lynch – both involve one of the weakest possible contexts in which to defend Chevron doctrine. The administrative agency at issue in both is the Board of Immigration Appeals, the primary function of which is just to decide the host of quasi-judicial immigration cases that must be adjudicated throughout the nation every year. In both cases, the complaint was that the BIA had changed the legal rules on the immigrants at issue and then applied those rule changes retroactively, implicating core fairness concerns, but no real issue of technical judgment or agency expertise.
Remarkably, Gorsuch’s next-best-known administrative law decision shares this feature. In United States v. Nichols, the issue was (again) the power of a non-technical administrator (the attorney general) to create retroactive effects on individuals – although Nichols, even more dramatically than the cases above, involved the agency interpreting a criminal statute. Gorsuch’s opinion would have denied the agency this power under the statute, or else recognized that Congress’ delegating this authority to the executive branch would violate the (now rarely invoked) non-delegation doctrine. Again, Gorsuch is fundamentally sticking up for the classic conception of separation of powers, and the priority position of Congress and the courts in making and interpreting the laws that determine the rights of individuals. But, again, the agency action at issue here is quite far removed from the core purposes of Chevron, in a way that highlights what is bothersome about the doctrine, and masks what it gets right.
All of this is to say that Gorsuch’s atypical take on administrative law may be rooted in his atypical perspective on the subject as a judge on the 10th Circuit, rather than on the U.S. Court of Appeals for the District of Columbia Circuit. The big agency rulemakings on technical questions that sit much closer to the core of Chevron doctrine tend to come up through the D.C. Circuit, and would accordingly jump to mind for justices who got their start there or whose government background involved these kinds of administrative-law issues. (Out of the previous nine justices, that is, remarkably, Scalia, Chief Justice John Roberts, and Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.) The D.C. Circuit does not have any immigration cases, however, and so Gorsuch’s perspective on applications for Chevron doctrine in that context will be relatively new on the court. Of course, Gorsuch’s opinions recognize that his critique of Chevron must extend to cases in which the doctrine makes much more sense than in the narrow area in which he is writing. But because judges are people, Gorsuch’s views on these questions are quite likely to be influenced by his exposure to cases in which Chevron doctrine has far more uncomfortable effects in terms of allocating the responsibility for “saying what the law is” between agencies and courts.
All in all, there is no question that a deep dive into Gorsuch’s writings in this area marks him as a unique skeptic of certain core doctrines of administrative law and the deference they provide to the agencies – particularly on questions of how to read their operative statutes. It is impossible in this regard to confuse Gorsuch with Breyer or Kagan, say, in terms of the deference they are likely to show towards administrative decision making in future cases. What is far less clear is whether and how far Gorsuch’s outspoken skepticism extends to the far-more-central cases of agency rulemaking in which Chevron developed and in which it continues to play a core role in making federal regulation effective. That much remains to be seen.