Gorsuch hearings: Should agencies – or courts – decide the law?

There are several elephants in the room where senators are grilling Judge Neil Gorsuch this week. One of those proverbial pachyderms was present courtesy of the aspiring Supreme Court justice.

“There’s an elephant in the room with us today,” Judge Gorsuch wrote in a 2016 concurrence that featured prominently in 11 hours of questioning Tuesday from members of the Senate Judiciary Committee.

The “elephant” Gorsuch was trying to draw wider attention to is a legal doctrine known as Chevron deference. Basically, a Supreme Court decision from 1984 states that, as long as a federal agency’s interpretation of a law passed by Congress is reasonable, courts should allow it – which tips the balance toward the executive branch of government.

With executive power now being challenged in the courts like never in living memory, many in the legal community think the “behemoth” of Chevron deference, as Gorsuch described it, should be revisited and revised as well. And that’s in no small part because of Gorsuch’s own comments while serving on the 10th Circuit Court of Appeals.

“Gorsuch is one of the most prominent, if not THE most prominent, lower court judges calling for a rethinking of Chevron,” wrote Ilya Somin, a professor at George Mason University’s Antonin Scalia School of Law, in an email to the Monitor. “His position is still a minority view. But the minority is growing.”

While scaling back Chevron would certainly affect agencies, it could also have significant repercussions for President Donald Trump, who not only nominated executive power skeptic Gorsuch, but who has also continued to push the envelope of executive power himself.

“Executive power issues are the most important that the [Supreme] Court will face in the next decade,” wrote Ernest Young, a professor at Duke University Law School, in an email to the Monitor. “The Executive must abide by statutory limits set by Congress, but if the Executive gets to define those limits (and courts have to defer to its definitions) then those limits are a lot less meaningful.”

Put more bluntly by Professor Somin: “Eliminating Chevron would help curb the dangerous expansion of executive power. It’s particularly desirable if you believe Trump and/or some other likely administration poses an unusually serious threat to the rule of law.”

In the three decades since the Chevron ruling, courts have grown even more willing to defer to agency expertise and the notion that executive agencies are more politically accountable than the judiciary. Simultaneously, the overall power of the executive branch has been steadily expanding.

“When an agency can overrule a judge on the law, that’s a separation of powers issue I think, maybe even an equal protection issue,” Gorsuch said Tuesday during his hearings. “I defer to experts when it comes to facts, but when it comes to questions of law, [the Administrative Procedures Act] entrusts courts to say what is the law.”

When should it apply?

Defenders of Chevron argue that deference to agencies is necessary because of their institutional expertise. They also argue that, for the government to run efficiently and effectively, agencies can’t be required to get court approval for every interpretation or reinterpretation of a law.

Chevron’s scope has become vast and complex, however, and criticisms of it are equally complex.

To which agency actions should Chevron deference apply, for example? The 1984 Supreme Court case – involving Gorsuch’s mother, Anne, who was the head of the Environmental Protection Agency under President Reagan – concerned how the US Environmental Protection Agency should interpret a “source of pollution” to be regulated by the Clean Air Act. The justices ruled that courts should defer to the EPA interpretation instead of crafting one itself.

But should a court show equal deference to the actions of a low-level IRS employee responding to a minor concern? And does the agency interpretation deserve deference immediately? Or only after it has been in effect after a certain amount of time?

Even the more liberal members of the Supreme Court have these kinds of nuanced concerns, says Professor Young.

“Justice [Stephen] Breyer is generally a strong supporter of agencies but – as a lifelong [Administrative] Law professor (he taught it to me back in 1992) – his views are very complex and there are situations where he would limit agencies significantly,” he adds. “Likewise, Justice Kagan is also an Ad Law professor in her former life and has complicated views. I don’t think this will turn out to be a left-right issue on the Court.”

Partisan lens

However, how people outside the court tend to view it does tend to be influenced by where they sit on the political spectrum.

“People on the right have become skeptical of bureaucrats’ claims to expertise because they perceive bureaucratic power as being exercised in overtly political ways,” wrote Young. “People on the left accuse the right of rejecting ‘science’ outright.”

The Gorsuch hearings have given the Chevron debate the exposure Gorsuch himself may have only once dreamed of, but it has done so through a distinctly partisan lens that belies the complexity of the issue.

“Reexamining Chevron is not about being anti- or pro-regulation. It's about restoring constitutional separation of powers. It's about ensuring that bureaucracy abides by the law no matter what its policy goals,” said Senator Orrin Hatch (R) of Utah. “This deference allows unaccountable bureaucrats to rewrite the law.”

Democrats on the committee have voiced the concern that abandoning Chevron due to fear of the latter could result in the courts disregarding agency expertise.

“Judicial action is often after the fact and backwards-looking, and regulation needs to keep up with the times,” says Sen. Chris Coons (D) of Delaware in an interview with the Monitor. As for the legislature, “unless Congress is going to start passing 5,000-page bills, we’re not going to have the time or competency to do [the technical work of agencies] in statute.”

During Tuesday’s hearing, Sen. Amy Klobuchar (D) of Minnesota quoted Gorsuch’s “behemoth” concurrence before asking if he would vote to overturn Chevron as a Supreme Court justice.

“My job as circuit judge is when I see a problem I tell my bosses about it,” Gorsuch responded. “If I was a justice I would try to approach it with as open a mind as possible.”

Gorsuch’s views may be more specialized than some fear. The 10th Circuit rarely deals with Chevron cases, and the cases it does deal with are arguably far-removed from the big agency rulemakings that the deference was originally meant to apply to.

While it is clear that Gorsuch would be more skeptical of Chevron than many of his colleagues on the high court, “What is far less clear,” wrote Eric Citron for SCOTUSblog, “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.”