Essay

If Goliath Falls

Judge Gorsuch and the Administrative State

Trevor W. Ezell & Lloyd Marshall *

Introduction

When it comes to Judge Gorsuch’s views on administrative law, the focus has been on one opinion—his concurrence in Gutierrez-Brizuela v. Lynch. 1 834 F.3d 1142 (10th Cir. 2016). In addition to authoring the majority opinion, 2 See id. at 1143, 1147-49 (holding the Board of Immigration Appeals could not apply its decision imposing stricter standards for adjustment of status petitions to a petition filed after that decision was issued but before the Tenth Circuit overruled prior case law to approve the new standards). Judge Gorsuch concurred separately to air concerns over Chevron’s rule requiring courts to defer to the judgments of executive agencies. 3 See id. at 1149, 1153 (Gorsuch, J., concurring); see also Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984) (setting out the two-step framework for Chevron deference). “We managed to live with the administrative state before Chevron,” he wrote. 4 Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring). “We could do it again.” 5 Id. Commentators across the political spectrum have seized upon the opinion, praising 6 See, e.g., David Feder, The Administrative Law Originalism of Neil Gorsuch, Yale J. on Reg.: Notice & Comment (Nov. 21, 2016), http://yalejreg.com/nc/the-administrative-law-originalism-of-neil-gorsuch. Other commentators recognize that the Chevron debate does not always have a clear political valence. See, e.g., Diane Klein, Gorsuch, Gutierrez-Brizuela, and Goodbye, Chevron, Dorf on Law (Feb. 1, 2017), http://www.dorfonlaw.org/2017/02/gorsuch-gutierrez-brizuela-and-goodbye.html. and criticizing 7 See, e.g., Alexander C. Kaufman, Trump’s Supreme Court Pick Wants to Gut Legal Rule That Environmental Groups Rely On, Huffington Post (Feb. 13, 2017, 4:01 PM ET), http://huff.to/2kpZdXp. it as indicative of a willingness to abandon a pillar of the modern administrative state. But those tempted to rush to Chevron’s defense or to hasten its demise will miss other aspects of Judge Gorsuch’s administrative law jurisprudence.

I. Facing the Behemoth

Judge Gorsuch’s Gutierrez-Brizuela concurrence indicts the status quo, claiming that “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.” 8 Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring). Arguing from the Framers’ understanding, Judge Gorsuch explains why we should care about the separation of powers in the first place—alluding to fundamental concerns of fair notice, equal protection, and democratic legitimacy—and why, in his view, Chevron and Brand X should raise concerns “[e]ven under the most relaxed or functionalist view of our separated powers.” 9 Id. at 1149-51, 1155. Judge Gorsuch might also be interested in the historical origins of Chevron itself. See generally Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017) (tracing historical origins of judicial deference to executive statutory interpretation).

He also questions the doctrine’s underlying logic. The Court in Brand X held that “judicial precedent [may not] foreclose an agency from interpreting an ambiguous statute” 10 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). because Chevron’s premise is that “ambiguities in statutes . . . are delegations of authority to the agency to fill the statutory gap.” 11 Id. at 980. So agencies must be permitted to overrule earlier judicial decisions in some circumstances. Granting that this rule “follow[s] pretty naturally” if one accepts Chevron’s premise, Judge Gorsuch attacks the premise, arguing that “Chevron’s claim about legislative intentions is no more than a fiction—and one that requires a pretty hefty suspension of disbelief at that.” 12 Gutierrez-Brizuela, 834 F.3d at 1151, 1153 (Gorsuch, J., concurring). None of this was necessary to decide the case. Nevertheless, Judge Gorsuch seized an opportunity to “bring[] the colossus” of the administrative state “fully into view.” 13 Id. at 1151.

II. Frenetic Lawmaking

In two recent cases, Judge Gorsuch opined sua sponte about the excessive proliferation of conflicting agency directives. In El Encanto, Inc. v. Hatch Chile Co., he refused to defer to a “sub-regulatory manual” to determine the scope of permissible discovery in Trademark Trial and Appeal Board proceedings, in part because the party’s proposed reading would have conflicted with the notice-and-comment regulations of the Patent and Trademark Office (PTO). 14 825 F.3d 1161, 1165-66 (10th Cir. 2016). But Judge Gorsuch had independent grounds for rejecting the informal guidance: the PTO manual expressly disclaimed force-of-law authority. 15 Id. at 1166. Nevertheless, he chided that “if the agency is indeed so confused that it has spoken out of both sides of its regulatory mouth, it has to be the side speaking unambiguously through formal rulemaking . . . that speaks the more loudly.” 16 Id.

Last year, in Caring Hearts Personal Home Services, Inc. v. Burwell, Judge Gorsuch wrote that the Centers for Medicare and Medicaid Services simply “applied the wrong law” when it penalized a health services provider pursuant to regulations it adopted after the contested services were provided. 17 824 F.3d 968, 970 (10th Cir. 2016). Although the case involved seemingly simple retroactivity issues, Judge Gorsuch characterized it as “a case about an agency struggling to keep up with the furious pace of its own rulemaking.” 18 Id. Apart from his concern that the judiciary is no longer saying “what the law is,” 19 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151-52 (10th Cir. 2016) (Gorsuch, J., concurring) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803)). he worried that “legislating agencies don’t know what their own ‘law’ is.” 20 Caring Hearts, 824 F.3d at 969-70 (emphasis added). And in “a world in which the laws are ‘so voluminous they cannot be read’” by the agency that promulgates them, he argued, our “constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.” 21 Id. at 976 (quoting The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter ed., 1961)).

III. Substance over Form

Judge Gorusch’s skepticism of Chevron’s premise is paradigmatic of his willingness to privilege substance over form in the administrative law context. De Niz Robles v. Lynch provides another example. 22 803 F.3d 1165 (10th Cir. 2015). There, he wrote for the panel that, while the Board of Immigration Appeals could overrule an earlier interpretation of a statute by the Tenth Circuit under Brand X, it could not apply its new rule retroactively to an earlier-filed petition for adjustment of status. 23 Id. at 1171-72. He noted that, unlike adjudication, legislation is presumed not to operate retroactively because of due process and equal protection interests. 24 Id. at 1169-71. Although an agency’s exercise of Brand X authority in an adjudication is ostensibly adjudicatory, Judge Gorsuch reminded readers that “substance doesn’t always follow form.” 25 Id. at 1173. In reality, “an agency operating under the aegis of Chevron step two and Brand X comes perhaps as close to exercising legislative power as it might ever get.” 26 Id. at 1172.

In a passage recognizing the limits on this “analogy to legislative activity,” 27 See id. at 1174. Judge Gorsuch clarified his view. Although recognizing Brand X adjudications have force of law only after judicial approval, he insisted that “what’s at issue in these cases is an agency decision” and that decision is “a policy choice subject to revision”—not an authoritative interpretation of law. 28 Id. at 1174 n.7. It is no surprise, then, that he wonders “whether the combination of Chevron and Brand X further muddles the muddle.” 29 Id. at 1171. Because the agency is making policy—not interpreting law—and because courts are deferring to that policy judgment, it’s policy all the way down. 30 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150-51 (10th Cir. 2016) (Gorsuch, J., concurring).

IV. Delegation Run Riot

This all invites the question: other than through deference, how are judges to get along in a world where statutes are often little more than statements of general policy? Indeed, Chevron is arguably justified by the very separation of powers concerns that animate Judge Gorsuch’s jurisprudence since it rests on the view that resolving statutory ambiguity requires courts to venture beyond the “traditional tools of statutory construction” 31 See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). and make essentially legislative judgments. Scrapping Chevron could merely swap one separation of powers problem for another. 32 Indeed, the alternative is potentially more problematic. See City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013).

It is unsurprising, then, that Judge Gorsuch displays sympathy for the nondelegation doctrine. United States v. Nichols 33 United States v. Nichols, 784 F.3d 666 (10th Cir. 2015) (en banc). is a telling example. There, the Tenth Circuit declined to rehear a panel decision upholding the Sex Offender Registration and Notification Act, which delegated to the Attorney General authority to determine the statute’s retroactive effect but provided no guidance on how to do so. 34 See id. at 668 (Gorsuch, J., dissenting from the denial of rehearing en banc). Judge Gorsuch dissented from the denial of rehearing. Rooting his analysis in the Constitution’s text and the Framers’ understanding, 35 See id. at 670. he argued that the statute “effectively pass[ed] off to the prosecutor the job of defining the very crime he is responsible for enforcing” and therefore unconstitutionally delegated legislative authority to the executive branch. 36 Id. at 677. That analysis transcended the facts of the case. 37 See, e.g., id. at 670 (“So it is that ‘to abandon openly the nondelegation doctrine [would be] to abandon openly a substantial portion of the foundation of American representative government.’” (alteration in original) (quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002))). And Nichols is no anomaly. 38 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153-55 (10th Cir. 2016) (Gorsuch, J., concurring).

At the same time, Judge Gorsuch admits the difficulties inherent in nondelegation. Namely, he recognizes that the “[d]elegation doctrine may not be the easiest to tease out and it has been some time since the Court has held a statute to cross the line.” 39 Nichols, 784 F.3d at 677 (Gorsuch, J., dissenting from the denial of rehearing en banc). But Nichols demonstrates a recognition that, as he has written in another context, “the difficulty of a task is not reason enough to abandon it, especially if it illuminates and aids in the enforcement of underlying constitutional demands.” 40 De Niz Robles v. Lynch, 803 F.3d 1165, 1174 (10th Cir. 2015).

V. A Radical Departure?

Some have suggested that Judge Gorsuch’s views would represent a major shift from Justice Scalia’s. 41 See, e.g., Jonathan H. Adler, Gorsuch’s Judicial Philosophy Is Like Scalia’s—With One Big Difference, Wash. Post (Feb. 1, 2017), http://wapo.st/2mdhiKq. But that is far from clear. After initially endorsing Chevron, 42 See Justice Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, Duke Law Journal Administrative Law Lecture (Jan. 24, 1989), in 1989 Duke L.J. 511, 516-17. Justice Scalia appeared to exhibit buyer’s remorse. 43 Justice Alito recently stated that Justice Scalia was “rethinking the whole question of Chevron deference.” See Robin Bravender, Alito Snubs Chevron, Obama EPA’s ‘Eraser,’ Greenwire (Nov. 17, 2016), http://www.eenews.net/greenwire/2016/11/17/stories/1060045952. For example, he recognized Chevron may not have been “faithful to the text of the Administrative Procedure Act,” 44 United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting). insisted on strict application at step one 45 See, e.g., City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227-29 (1994). and step two, 46 See, e.g., Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442-44 (2014); Christensen v. Harris County, 529 U.S. 576, 591 (2000) (Scalia, J., concurring in part and concurring in the judgment). suggested Chevron should not apply at all in criminal cases, 47 See Whitman v. United States, 135 S. Ct. 352, 352-54 (2014) (Scalia, J., statement respecting the denial of certiorari). dissented from the Brand X rule, 48 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1014-17 (2005) (Scalia, J., dissenting); see also Mead, 533 U.S. at 248 (Scalia, J., dissenting) (“I know of no case, in the entire history of the federal courts, in which we have allowed a judicial interpretation of a statute to be set aside by an agency . . . .”). lambasted Auer deference, 49 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211-13 (2015) (Scalia, J., concurring in the judgment); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1342 (2013) (Scalia, J., concurring in part and dissenting in part). and conceded the nondelegation doctrine is “essential to democratic government.” 50 See Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). And for his part, Judge Gorsuch recognizes that in a post-Chevron world “courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.” 51 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). In our review of precedential opinions, Judge Gorsuch regularly sided with agencies. For example, in labor cases involving the NLRB, Gorsuch sided with the agency in three out of four cases. Compare Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198, 1200 (10th Cir. 2014) (voting with the NLRB), Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1079 (10th Cir. 2012) (voting the same way), and Laborers’ Int’l Union, Local 578 v. NLRB, 594 F.3d 732, 734 (10th Cir. 2010) (voting the same way), with NLRB v. Cmty. Health Servs., Inc., 812 F.3d 768, 780 (10th Cir. 2016) (Gorsuch, J., dissenting) (voting against the NLRB).

The suggestion that Judge Gorsuch would represent a radical shift may also mistake his propensity to critically examine doctrine for a penchant to destroy it. But asking why doctrine looks the way it does seems like the quintessential task of a Supreme Court Justice. 52 Indeed, the sitting Justices recently raised serious questions about Chevron, seemingly sussing out one another’s views in anticipation of a new colleague. See Transcript of Oral Argument at 11-12, 14-18, 38-39, Esquivel-Quintana v. Sessions, No. 16-54 (U.S. Feb. 27, 2017). And some of the shifts Judge Gorsuch might foreseeably bring about—like refusing to defer on pure questions of law 53 See Negusie v. Holder, 555 U.S. 511, 531 (2009) (Stevens, J., concurring in part and dissenting in part); cf. Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1246 (2015) (Thomas, J., concurring in the judgment). and closely scrutinizing an agency’s cost-benefit analysis 54 See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 230, 235 (2009) (Breyer, J., concurring in part and dissenting in part). —have already been suggested by others.

Moreover, Judge Gorsuch emphasizes that formalism matters because our constitutional structure has consequences for “personal liberty, fair notice, and equal protection.” 55 Judge Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 2016 Sumner Canary Lecture at Case Western Reserve University School of Law (Apr. 7, 2016), in 66 Case W. Res. L. Rev. 905, 915 (2016); see Peter Margulies, Judge Gorsuch on Empathy and Institutional Design, Lawfare (Feb. 2, 2017, 12:29 PM), https://www.lawfareblog.com/judge-gorsuch-empathy-and-institutional-design. In a speech discussing De Niz Robles v. Lynch, 56 803 F.3d 1165 (10th Cir. 2015). he bemoaned that our separation of powers—the original solution to the problem of “parchment barriers” 57 See The Federalist No. 48 (James Madison), supra note 21, at 308. —has become parchment itself: “[A]n executive agency acting in a faux-judicial proceeding and exercising delegated legislative authority purported to overrule an existing judicial declaration about the meaning of existing law and apply its new legislative rule retroactively to already completed conduct.” 58 Gorsuch, supra note 55, at 915. But he couched his structural concerns in practical, human terms: “What did all this mixing of what should be separated powers mean for due process and equal protection values?” 59 Id. That “after a man relied on a judicial declaration of what the law was,” an agency changed the rules, penalizing Mr. De Niz Robles “for conduct he couldn’t alter, and denying him any chance to conform his conduct to a legal rule knowable in advance.” 60 Id.

At first blush, Judge Gorsuch’s concerns may seem to run in different directions. His objection to Brand X is that agencies are encroaching on the judicial power “to render authoritative judgments about what a statute means.” 61 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring); see also id. at 1150 (“Quite literally then, . . . an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals.”). But his criticism of Chevron—and muddling of executive and legislative authority—rests on the notion that current doctrine “permit[s] agencies to make the law.” 62 See id. at 1152; see also De Niz Robles v. Lynch, 803 F.3d 1165, 1174 n.7 (10th Cir. 2015) (portraying agencies as “mak[ing] policy judgments,” not “construing statutory text”). No matter. Judge Gorsuch recognizes the incompatibility between these competing judicial-separation-of-powers and legislative-nondelegation narratives. 63 See Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring) (contrasting differing “account[s]” of agency action). But his thesis does not rise or fall on either. Rather, the ultimate principle is judicial nondelegation: “[f]or whatever the agency may be doing . . . , the problem remains that courts are not fulfilling their duty to interpret the law.” 64 Id. at 1152-53.

To be sure, Judge Gorsuch’s views admit of certain tensions. His conclusion that Chevron may be “a judge-made doctrine for the abdication of the judicial duty” 65 Id. at 1152. raises the ultimate question with which he will be peppered in coming weeks: what is the judicial duty? Considering judges adopted Chevron with a view toward judicial restraint, 66 See City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013) (“We have cautioned that ‘judges ought to refrain from substituting their own interstitial lawmaking’ for that of an agency. . . . That is precisely what Chevron prevents.” (quoting Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980))). what is a judge committed to full-throated judicial responsibility to do? If “goliath . . . falls,” 67 See Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring). who will take his place? We may find out soon enough.

* Trevor W. Ezell, J.D. Candidate, Stanford Law School, 2017. Lloyd Marshall, J.D. Candidate, Stanford Law School, 2018.