It doesn’t get more exciting than this!

For administrative law nerds, U.S. Tenth Circuit Court Judge Neil Gorsuch’s concurring opinion this week calling for the High Court to reconsider its Chevron doctrine is about as thrilling as it gets!  Although it is hard to top, Tony Francois and I also savored the timing, given that we foreshadowed this type of opinion just a week before in an op-ed featured in the Daily Journal of San Francisco.

Whether you are an administrative law nerd already or you hope to become one (who doesn’t fit one of those categories?), our Daily Journal op-ed helps explain these recent developments and puts them in perspective. We reported on the increasing pressure to either restrict or overrule the excessive and improper deference courts apply to agency interpretations of law, including interpretations of their own power. We describe the historical events that contributed to the problem, including the Supreme Court’s ruling in Chevron v. NRDC (1984) concerning when courts should grant such deference, and we discuss congressional and judicial actions that are being debated to correct this unjust state of affairs.

Among other things, we noted that:

Chevron deference has come under attack for various reasons. It’s arguably contrary to [Administrative Procedure Act] provisions that require courts to rule independently on matters of law, and more fundamentally, it’s incompatible with the judiciary’s constitutional duty to “say what the law is.” Moreover, agency interpretations of their own powers are hardly neutral, even if some occasional, reform-minded presidents are elected. Agency officials will seek to expand their own power at the expense of the regulated, regardless of the party in control, and for the most benign-seeming reasons (at least to the officials whose power is aggrandized).

Our piece titled “Chevron disfavor on the rise” ended it with our thoughts on why the Supreme Court should be the principal agent to supply the “course correction [that] is sorely needed.” As it turns out, that is just what Judge Gorsuch was writing in his lengthy, and we concede, much more powerful set of opinions that came out this week. We don’t pretend that our op-ed contributed to Judge Gorsuch’s conclusions, but our piece explains why his opinion is part of a chorus that will be increasingly hard to ignore.

Judge Gorsuch writes first for a unanimous three-judge panel on an admittedly obscure application of the Supreme Court’s Chevron doctrine to a series of decisions by an executive branch agency—and whether federal courts must defer to each of those agency determinations. The majority opinion that resolves the particular dispute is interesting enough to those steeped in Chevron-doctrine minutiae, but Judge Gorsuch’s 23-page concurring opinion (which is almost twice as long as the decision it is attached to) is the real deal. It begins thus:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is 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. Maybe the time has come to face the behemoth.

And face it he does. The subsequent pages show what a penetrating and clear-thinking scholar Gorsuch is. The Supreme Court’s deference doctrines are an unjustified abdication of duty, which violate both statutory and constitutional commands that an independent judiciary “say what the law is” when deciding cases properly before the courts. Judge Gorsuch hints at some aspects of these doctrines that are especially vulnerable, hints that PLF attorneys were already aware of but are even more likely to try to exploit.

Laced throughout Gorsuch’s concurring opinion are reminders to a Supreme Court that is reluctant to reverse itself that many of its deference doctrines, especially of the Chevron and Brand X variety, are of a “recent” vintage and should command no great precedential weight or respect. His critique ends this way:

All of which raises this question: what would happen in a world without Chevron? * * * Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is… [That] would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election. And an agency’s recourse for a judicial declaration of the law’s meaning that it dislikes would be precisely the recourse the Constitution prescribes — an appeal to higher judicial authority or a new law enacted consistent with bicameralism and presentment. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things.

Let’s hope the United States, which lost the case to which Judge Gorsuch appends his concurrence, asks the Supreme Court to hear it. Either way, PLF will continue to ask the High Court to take up these matters. We have two cases pending before the justices right now that advance reform of the administrative state in conformity with individual rights and the constitutional separation of powers. These efforts are righteous and part of the arc of history that bends toward justice. PLF is privileged to help advance the cause.