Deference Mechanism

In any other Presidential administration, Gorsuch & Trumpthe big news Monday would have been the start of hearings for the President’s first Supreme Court nominee.  But since this is the Trump presidency, of course that day, like most days so far, had to be different and more dramatic.

So instead of focusing on the Neil Gorsuch hearing in the Senate, the news was dominated by the testimony in the House of FBI Director Comey and NSA Director Rogers. The Comey/Rogers hearing was indeed quite fascinating and revealing, but since it was already very well covered, I’m going to talk about that first story, the one that didn’t get much coverage: Supreme Court nominee Gorsuch.

I’m not going to give you a comprehensive survey of Gorsuch’s background or judicial philosophy.* I just want to look at one particulary interesting detail about him that some legal commentators have pointed out. In 2016, in a case called Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a separate concurring opinion in a case in which he wrote the majority opinion. That is obviously an unusual thing to do – why write an opinion agreeing with yourself?  He seems to have done this because he wanted to add a personal point of privilege that was outside of the legal precedent involved in resolving the case.  So he used his separate concurrence to do that.   The details of the case aren’t important for our purposes.  What’s significant is what he talked about in his concurrence.

In his concurring opinion in Gutierrez, Gorsuch wrote about the legal doctrine known as “Chevron deference.” Chevron is a landmark 1984 Supreme Court case, which says that courts should give wide deference to regulatory agencies in interpreting laws where a statute is ambiguous (i.e. where Congress’ intent isn’t clear), as long as the interpretation put forth by the agency is a reasonable one.**

Gorsuch wrote that Chevron gives the executive branch too much power (by taking power from both Congress and the Judiciary).  He appeared to be looking for a reconsideration of Chevron deference, writing in his concurrence about “a world without Chevron.”scales of justice This is not a position that has been commonly expressed even among conservatives, though it does fit with the general conservative desire for a smaller government.

And this view has become increasingly popular among conservatives very recently. The Supreme Court has also been slowly narrowing the application of the doctrine.  Interestingly, the late Justice Antonin Scalia, to whom Gorsuch has most often been compared, did not share this particular view with him, though he may have been moving somewhat in that direction later in his career.  Justice Thomas seems to be the only current Justice who fully shares this view.

As part of the Senate confirmation process for his Supreme Court nomination, Gorsuch was required to fill out a lengthy questionnaire. One of the questions asked him to list the most significant cases he decided as a judge.  He listed Gutierrez as his top case, so this appears to be an issue he prioritizes.

If Chevron were ever to be reversed, that would be a radical change to the regulatory state, significantly curtailing the authority of federal regulatory agencies.  It would mean that experts at agencies, such as the EPA, FDA, IRS etc, would no longer be given deference when it comes to interpreting and enforcing regulations.

This Washington Post article gives a good sense of the sorts of things that agency bureaucrats make decisions about every single day, the ways in which the “administrative state” supports the job of the President.  If Chevron were overturned, it wouldn’t take away all of their decision making authority, but it would dramatically shift power away from them.

The career executives who staff and run the approximately 250 federal departments and agencies not only formulate and implement executive orders, they also make choices every day that influence large swaths of public policy — from immigration to law enforcement to education to the environment. They use their legal authority to do what all executives do: interpret the power given them by their board of directors (in this case, Congress), set organizational priorities in formal guidance or memorandums and make decisions about where to allocate people and dollars.

The comments in Gorsuch’s concurrence became more interesting to me recently, after top Trump aide Steve Bannon made a rare public appearance at CPAC last month.  There, he spoke about how one of the three goals of the Trump administration is the “deconstruction of the administrative state.”  Of course, part of this administrative state is the system of regulations and regulatory agencies that help keep our country running.  This is the very thing that would be weakened if Gorusch follows through on his apparent desire to undo Chevron.

One last thing to keep in mind, for those of us who oppose Trump: in a world where the regulatory agencies are headed by Trump appointees (which most are now, and presumably eventually all will be), we might appreciate a change in the law that reins in their powers.  But this would depend on how, exactly, the Court would make such a change (i.e. the Court could possibly find a way to limit Chevron that still allows deference in areas like immigration and other law & order spaces where Trump or another Republican President is likely to want it, but doesn’t allow for it in many other areas where more liberal priorities are pursued).

Update 4/2: Emily Bazelon & Eric Posner of the New York Times had a good piece out this weekend on this subject.  Their article gets into a little background about how the history of the law in this area developed.  They also talk briefly about how Gorsuch responded to questions about Chevron at his Senate confirmation hearing – questioning which occurred after I originally wrote this post.  Their article fills in some useful details if you’re interested in this topic.

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.”

Also, Eric Posner has written separately, on his own website, about Gorsuch’s answers at the confirmation hearing.  There, Posner states outright that he thinks Gorsuch was being evasive when he claimed in the Senate hearing to have an “open mind” on Chevron.

*****

Notes:

*Though you may be interested to know that the New York Times looked at several studies which analyzed the ideologies of potential nominees (before the choice had been made) and found Judge Gorsuch to be one of the most conservative judges in the country. One study  found Judge Gorsuch to be more conservative than 87% of federal judges in the country.  Another study would place him as the second most conservative Justice on the Supreme Court, second only to Justice Thomas.  That study finds he would be more conservative than Justice Scalia had been.

Separately, in a study done by political science professors for the Washington Post, it was determined that Gorsuch would be the most conservative Justice on the Supreme Court, surpassing even Justice Thomas.

**Very dedicated readers with good memories will remember that I wrote about Gorsuch & Chevron briefly in February, in a note at the end of a post that talked about a court ruling in which Chevron deference played a big factor.  But new, relevant comments from Steve Bannon since then made me think the topic deserved its own post.

 

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