Indeed, in his concurring opinion in Gutierrez-Brizuela v. Lynch (2016), Judge Gorsuch wrote, “We managed to live with the administrative state before Chevron. We could do it again.”
To be sure, at a basic level, Judge Gorsuch is not incorrect. America’s modern administrative state could reasonably be characterized to have emerged in 1887 with the Interstate Commerce Act, 97 years prior to the Chevron holding. Policy implementation by way of rulemaking would not cease in the event of its reversal.
Yet the aversion to Chevron deference to agency expertise is emblematic of a broader view about regulatory capacity and the proper role of the federal government versus states and private enterprise. Indeed, in that same opinion he held that Chevron and Brand X “permit executive bureaucracies to swallow huge amounts of federal power” in excess of that envisioned by the framers.
Judge Gorsuch’s mother, Anne Gorsuch, is notable for a deregulatory stance while serving as Administrator of the Environmental Protection Agency from 1981 to 1983, and Judge Gorsuch seems to share her view about the proper role of executive branch agencies as vehicles of policy change. Indeed, the notion of having an agenda characterized by “regulatory relief” is far from unusual in a Republican administration.
What is less usual is President Trump’s Executive Order calling for the rescission of two rules for every new rule promulgated. Such a move could reasonably be characterized as working toward Bannon’s stated goal of “deconstructing the administrative state.” Setting aside the logistical challenges that would emerge in the implementation of the EO – namely, that some rulemaking is mandatory not discretionary, and that notice and comment processes apply to rule rescission as well – it reflects a hostility to a regulatory state across a range of policy domains.
The proper scope of the regulatory state is not crystal clear, though many would hold that complexities of contemporary politics and policymaking require a significant measure of deference to agency interpretations of regulatory authority. Members of Congress, whether junior or senior, are not experts in the safe levels of benzene in water. They are not experts in the the design features ensuring safety of particular classes of vehicles. They are not experts in ergonomic design for diverse ranges of workplaces.
Agencies, on the other hand, are comprised of experts and have the technical knowledge as well as the resources to render such reasoned judgments, and are able to draw also on an extensive body of information gleaned through the notice and comment process. And while this presents reasonable questions of democratic theory – that is, members of Congress are directly accountable to the voters, whereas bureaucrats are not – it presents practical, efficiency advantages. By all accounts, drawing on this scientific and otherwise technical expertise is imperative. In its absence, Congress is left to construct these technical details absent the adequate training and resources to do so.
Judge Gorsuch’s confirmation hearing was – true to form with respect to any Supreme Court nomination proceeding – characterized by a vigilant defense of stare decisis, or respect for judicial precedent. That is, he articulated a commitment to upholding existing case law, to enforcing laws passed by Congress and respecting prior decisions rendered by the Court. Such a view is commonly articulated in nomination hearings, and will (if true) give comfort both to liberals concerned about the endurance of Roe v. Wade and to conservatives concerned about judicial activism.
This makes Gorsuch’s stated views on Chevron all the more interesting, given its status as a widely-cited and heavily influential administrative law precedent from 1984. Indeed, it is the third most-cited administrative law case. While publicly characterizing such holdings as Roe and Obergefell as being “the law of the land,” he openly criticized in Gutierrez the view of the regulatory state embraced by Chevron deference to agency interpretations of the laws that Congress passes.
It is unclear that Congress will indeed succeed with its legislation to reshape the deference afforded. Yet there is a striking inconsistency on the part of Judge Gorsuch, accepting on principle one precedent as the law of the land while stating we could (perhaps should) do without another precedent. Thus, it is distinct from mere disagreement from the holding, in that he advocated in his concurrence a world without Chevron.
And while Judge Gorsuch was not actually advocating in his hearing for its overturning, and indeed acknowledged the value of scientific expertise, if we rely on his written words as he called upon the committee to do, there is ample reason for concern about the scope of the regulatory state under the Trump Administration and beyond if and when Judge Gorsuch is confirmed to the Supreme Court. Scaling back on the Court’s reliance on Chevron may prove to have only a modest impact, though it has the capacity to impact the multitude of cases that rely on it, with potentially drastic impact on environmental regulation. Indeed, the EO and Judge Gorsuch could potentially be the perfect convergence of circumstances for the Trump Administration in its effort to deconstruct the administrative state.
Judge Gorsuch at his hearing set up a false dichotomy between being thoughtful versus being political, the latter of which Gorsuch decried given his status as a federal judge. Ultimately, a reality of being in the government – even in the judicial branch – is that politics and policy are often (some might say too often) intertwined. This is ever truer at this time when President Trump’s policies defy historical precedent with respect to both domestic and foreign policy. Whether he likes it or not, the implications of Judge Gorsuch’s views about Chevron and its proper ongoing role in American administrative law are important to our law, politics, and policy.
America’s greatness is not achieved by looking “backward, not forward.”