President Trump’s nomination of Judge Neil Gorsuch to fill the current vacancy on the Supreme Court will encounter both procedural and substantive opposition. Democrats who believe—rightly in my view—that the Republican-controlled Senate acted without justification by denying Judge Merrick Garland a hearing despite the fact that he was nominated almost a year before the end of President Obama’s second term may choose to filibuster the Gorsuch nomination on the ground that this seat was effectively stolen.
In addition, although no reasonable person doubts that Judge Gorsuch has excellent professional credentials (as does Judge Garland), many Democrats may choose to vote against him based on ideology. Senators and commentators have long debated whether ideology is a legitimate criterion for voting against the confirmation of a professionally qualified nominee, with no consensus emerging.
On one hand, presidents very clearly consider ideology in choosing whom to nominate, thereby suggesting that Senators in choosing whether to “consent” to a nomination should likewise be able to make their judgments on that ground.
On the other hand, given polarization on the most consequential issues the Supreme Court decides—such as voting rights, gun control, affirmative action, abortion, the death penalty, and same-sex marriage—if Senators employ the same sort of ideological screen that presidents do then no president will ever be able to have a nominee confirmed when the other major party controls the Senate. The Senate’s treatment of Judge Garland (despite the disingenuous claim that Republicans were merely waiting for the People to have their say) indicates that this is indeed the new normal. Over the long run, this new normal will lead to two harmful consequences: periods of prolonged Supreme Court vacancies and increased polarization.
Still, even if the current state of affairs is bad for the Court, Senate Democrats cannot be expected to unilaterally disarm by implementing a norm of deference to a Republican president when Republicans are uninterested in reciprocating. Thus, substantial numbers of Democrats can be expected to oppose Gorsuch on substantive ideological grounds.
Yet whether Democrats base their votes on a procedural objection to the Republicans having stolen the seat from President Obama and Judge Garland or considerations of ideology, we can expect Judge Gorsuch to receive unanimous support from Senate Republicans.
The only real suspense concerns how Judge Gorsuch is confirmed. Will forty-one Democrats hold fast and filibuster, requiring the Republicans to “go nuclear” and end the filibuster for Supreme Court justices? Or will the GOP campaign of targeting red state Democrats up for reelection in 2018 peel off enough of their votes so that Judge Gorsuch can be confirmed without a change in the cloture rule?
Whatever the ultimate answers to these questions, Judge Gorsuch’s views about hot-button issues will be much discussed in the coming weeks. Having closely watched every Supreme Court confirmation hearing in the last three decades, I expect the discussion about such topics to produce more heat than light.
Nonetheless, the Gorsuch nomination provides an opportunity for public discussion of an extremely important but seemingly technical topic. For while the media and party activists understandably comb Judge Gorsuch’s record for his views on social issues, arguably his most distinctive position concerns administrative law. Judge Gorsuch is an outspoken critic of the so-called Chevron doctrine, under which courts defer to reasonable agency interpretations of ambiguous federal statutes. His views on that topic differ substantially from the views of the late Justice Antonin Scalia, whose seat Judge Gorsuch would fill. As I shall explain, Scalia was right and Gorsuch is wrong.
The Chevron Doctrine and Justice Scalia
The Chevron doctrine gets its name from a 1984 case, Chevron U.S.A., Inc. v. NRDC, in which the Supreme Court upheld the Reagan Administration’s decision to enforce the Clean Air Act with less vigor than the Carter Administration had done, on the ground that the relevant statutory language was ambiguous, and while the Carter interpretation was reasonable, so was the Reagan interpretation. Since then, Chevron has come to stand for the proposition that courts will defer to reasonable agency interpretations of vague or ambiguous statutes.
Why should courts defer to reasonable agency interpretations of statutes? The cases identify two main considerations. First, given the complexity and technicality of many areas of law, agencies staffed with experts are more likely to get it right than are generalist judges and justices working only with a staff of recent law school graduates. Second, insofar as filling statutory gaps involves value judgments—such as trading off environmental protection against industrial output—those judgments should be made by agencies ultimately answerable to the president and thus politically accountable, rather than by unelected judges.
Although the Chevron case provides the deference doctrine its name, as the citations in Chevron itself show, the deference principle is somewhat older, with antecedents in cases as far back as the early nineteenth century. In recent years, Chevron has crystallized into a two-step process: at step one courts determine whether a statute is clear; if not, then at step two courts determine whether the construction of the statute by the agency empowered to administer it is reasonable, and if so, the courts defer to that construction even if the judges or justices, acting without agency guidance, might choose a different reasonable construction of the statute.
Some commentators argue that there is also a threshold “Chevron step zero,” in which courts decide whether Chevron applies at all by determining whether the allegedly ambiguous statute reflects a decision by Congress to delegate clarificatory power to an agency and whether the means used by the agency fall within such the scope of the delegation. Notably, as Professor Cass Sunstein explored in a 2006 Virginia Law Review article, Justice Scalia was arguably the Supreme Court’s strongest champion of a broad scope for the Chevron doctrine. Justice Scalia expressed his view forcefully in a dissent in the 2001 case of United States v. Mead Corp., where he accused his colleagues of weakening the “general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce.”
Why did Justice Scalia vigorously champion the Chevron doctrine? His enthusiasm for Chevron may have been rooted in the same attitude that drove him to originalism in constitutional interpretation and textualism in statutory interpretation (both outside the agency context and at Chevron step one in the agency context). If there is a single theme running through Justice Scalia’s writings on and off the Court, it is the danger of judicial discretion. He constantly warned against unelected judges reading their own preferences into the language of either the Constitution or statutes. Chevron was a natural complement to Scalia’s textualism because it provides that where the statutory text truly is unclear, judges should defer to administrative agencies possessed of both greater expertise and political accountability (through presidential supervision) than the judges themselves.
To be sure, late in his career, Justice Scalia sometimes appeared to lose the courage of his jurisprudential convictions and give in to his ideological druthers. For example, in the 2015 5-4 ruling in Michigan v. EPA, Justice Scalia wrote for the conservative majority that the Obama Environmental Protection Agency (EPA) acted unreasonably in regulating power plants’ emissions of mercury and other pollutants by failing to consider costs, thus invalidating the regulation at Chevron step two. (The dissent by Justice Elena Kagan and joined by the other Democratic appointees protested that the EPA did consider costs.) But if the Michigan case and some other cases show Justice Scalia sometimes not living up to his commitment to the Chevron framework, he never wavered in his endorsement of that framework.
Against that backdrop, it is striking that Judge Gorsuch, whose judicial philosophy has frequently been likened to Justice Scalia’s, should attack Chevron head on.
Judge Gorsuch’s Weak Case Against Chevron
Judge Gorsuch is not the first person to call for a reconsideration of Chevron, nor are his arguments entirely novel. Yet because of his nomination to the Supreme Court, Gorsuch’s formulation of the case against Chevron merits careful consideration. He set it out with considerable verve in his concurrence in his own majority opinion in last year’s ruling in Gutierrez-Brizuela v. Lynch.
Judge Gorsuch offered three main objections to Chevron. None survives careful scrutiny.
First, Judge Gorsuch took aim at Chevron and the 2005 ruling in National Cable & Telecomm. Ass’n v. Brand X Internet Serv.—which granted deference to an agency interpretation of a statute even after the courts, acting without benefit of the agency action, had read the statute differently. He said that under these two rulings regulated parties are deprived of the notice they need to order their affairs in reliance on stable law. Although Judge Gorsuch did not quite say that Chevron and Brand X thereby violate the constitutional requirement of due process, he came close.
Yet this objection is myopic. It is true that Chevron and Brand X both upheld agency action that changed the prior legal status quo, thus presenting the potential for frustrating reliance. But much more frequently, the Chevron doctrine protects reliance. Chevron deference only applies where an Act of Congress is ambiguous, that is, where the statute, standing alone, fails to give regulated parties notice of what is or is not required of them. By validating agency interpretations of statutes, Chevron entitles regulated actors to rely on agency guidance about their rights and duties. And because agencies acting through rulemaking and other means can cover much more ground than courts, in more general terms, and more quickly, on the whole Chevron promotes the very legal certainty that Judge Gorsuch thinks it and Brand X threaten.
Judge Gorsuch also complains that by deferring to agency interpretations of statutes, courts betray the principle articulated in 1803 in Marbury v. Madison that “[i]t is emphatically the duty of the Judicial Department to say what the law is.” Under Chevron, he protests, agencies rather than courts say what the law is.
Yet this objection misconceives what Chevron actually does. Addressing just this point in an important 1989 article in the Duke Law Journal, Justice Scalia explained that when courts apply Chevron they construe unclear statutory language as delegating power to the agencies to fill gaps. Chevron, he argued, retains the judicial power to say what the law is. In applying Chevron, the courts say that Congress intended to delegate power to agencies.
That brings us to Judge Gorsuch’s third complaint. He argues that Chevron violates the basic rule that Congress may not delegate its lawmaking power to the executive branch, invoking what has come to be known as the nondelegation doctrine.
Yet the nondelegation doctrine has been toothless for eight decades. Under modern case law, so long as Congress provides even the vaguest “intelligible principle” to guide the agencies, broad delegations are upheld. And rightly so. Given the complexity of the world and the institutional limits of Congress, a nondelegation doctrine with bite would cripple the government’s ability to regulate harmful conduct across an extraordinarily wide range of subjects.
In his Gutierrez-Brizuela concurrence, Judge Gorsuch pays lip service to the toothlessness of modern nondelegation doctrine, but his jeremiad against Chevron leaves little doubt that were it up to him, he would dispense with Chevron and likely strengthen the nondelegation doctrine more broadly. The result would be to hobble the administrative state.
Short-Term Benefits and Long-Term Costs
In our current times, that might not be so bad. As Professor Diane Klein wrote on my blog last week, the devotion to judicial independence and separation of powers displayed by Judge Gorsuch in the Gutierrez-Brizuela case suggests that he would likely stand up to authoritarian measures pursued by President Trump. Moreover, the fact that Judge Gorsuch sided with an undocumented immigrant against the government in the case shows that he is no result-driven partisan. If Judge Gorsuch is destined to sit on the Supreme Court, these qualities will serve the country well during the current administration.
But we should be clear-eyed about the long term. For decades after Donald Trump leaves the White House, a Justice Gorsuch will likely sit on the Supreme Court. At some point in his tenure we will almost certainly once again have a federal government that looks to rein in corporate and other private actors for the benefit of the public. Should Gorsuch and like-minded colleagues succeed in eliminating Chevron deference, they would also severely curtail the ability of that future government to meet the needs of the people.