On January 31, President Trump introduced Judge Neil Gorsuch as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia. Gorsuch, who currently sits on the U.S. Court of Appeals for the Tenth Circuit, has been widely-praised for his lucid, well-reasoned opinions on a wide range of federal law questions. Like Scalia, his opinions reveal a textual orientation in matters of constitutional and statutory interpretation, a belief that criminal laws should be clear and interpreted in favor of defendants even at the expense of government prosecutions, and a skeptical stance toward administrative agencies.
Unlike Scalia, however, Gorsuch has criticized the so-called Chevron doctrine – the rule that courts must defer to permissible agency interpretations of ambiguous statutory language – which Scalia generally defended. Indeed, Gorsuch’s view of Chevron is more conservative than Scalia’s. In the words of Eric Citron at ScotusBlog:
[Gorsuch] believes even . . . broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.
Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground.
Last year, Judge Gorsuch joined those who believe it is time to reconsider Chevron in a concurring opinion in Gutierrez-Brizuela v. Lynch. His concurrence begins:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is 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. Maybe the time has come to face the behemoth. . . .
He continues further on:
In the Administrative Procedure Act (APA), Congress vested the courts with the power to “interpret . . . statutory provisions” and overturn agency action inconsistent with those interpretations. 5 U.S.C. § 706. Congress assigned the courts much the same job in the immigration field where we happen to find ourselves today. 8 U.S.C. § 1252(a)(2)(D). And there’s good reason to think that legislative assignments like these are often constitutionally compelled. After all, the question whether Congress has or hasn’t vested a private legal right in an individual “is, in its nature, judicial, and must be tried by the judicial authority.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803) . . . Yet, rather than completing the task expressly assigned to us, rather than “interpret[ing] . . . statutory provisions,” declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is “ambiguous,” and at step two they decide whether the agency’s view is “reasonable.” But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct. . . .
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. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. 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. . . .
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. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . 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 — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . . 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. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). . . .
And it concludes:
What would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. 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. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things.
The entire 22-page concurrence is worth reading. As far as administrative law opinions are concerned, it is stirring stuff, and presents a provocative and persuasive case for reconsidering Chevron’s constitutionality and ultimate desirability.
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