Soon, we may be living in “a world without Chevron.”[2] If confirmed for the Supreme Court, Judge Neil Gorsuch could spark a sea change in administrative law by overturning Chevron, the doctrine under which courts afford deference to an administrative agency’s reasonable interpretation of an ambiguous statute. Such a change would be ill-advised. Removing the power of agencies to interpret ambiguous statutes and giving that power to courts would place legislative power in the hands of unaccountable lifetime appointees with no expertise in the subject matter area, raising separation of powers, practicality, and accountability concerns.

When President Trump nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court in late January, the selection was not seen as controversial.[3] Any problems confirming Gorsuch will be more likely due to lingering animosity over Republicans’ refusal to vote on President Obama’s nominee Merrick Garland than to Gorsuch’s ideological views. Yet, while appearing to be in line with mainstream conservative jurisprudence, there is one area in which Gorsuch is clearly an outlier—administrative law. Motivated by his originalist interpretation of the Constitution,[4] Gorsuch is concerned that the modern administrative state undermines separation of powers principles, even going so far as to advocate for the revival of the moribund nondelegation doctrine.[5]

Gorsuch’s Desire to Sound the Death Knell for Chevron

Maybe most troubling are Gorsuch’s views on the Chevron doctrine, which holds that courts must defer to agency interpretations of ambiguous statutes so long as their interpretations are reasonable.[6] While Chevron has surely been the subject of criticism,[7] efforts to overrule it, such as the Regulatory Accountability Act of 2017[8] introduced earlier this year, are likely to fail[9] and would not definitively end federal courts’ application of the doctrine.[10] Late last year, Gorsuch wrote a scathing concurrence in which he questioned the constitutionality of the Chevron doctrine:

“. . . courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”[11]

In recent years, even before Gorsuch’s nomination, the Court has already begun taking administrative agency decisions out of the Chevron framework when it thinks that an issue is one of “deep economic or political significance.”[12] Thus, in King v. Burwell, despite finding that the Affordable Care Act provision at issue was ambiguous, the Court found that Chevron did not apply and rather it was the Court’s “task to determine the correct reading” of the statute.[13] This is, in essence, what Gorsuch is calling for when he asks for a “world without Chevron”:[14] courts deciding interpretation issues rather than deferring to an agency’s interpretation. Obviously, the Court taking a few decisions out of agency hands such as in King v. Burwell is much different than taking all decisions for themselves, as Gorsuch advocates. Such a shift in the Chevron doctrine, however, shows that the Court is already thinking about ways to insert itself into administrative policy even without Gorsuch’s potential influence.

The Problems with Gorsuch’s Judicial Power Grab

Should Gorsuch be confirmed and garner the votes necessary to overturn Chevron, or at the least lead the Court to more decisions similar to that in King v. Burwell, what would this mean for the implementation of statutes by agencies?

There are both separation of powers and practical problems with scrapping Chevron. First, while Gorsuch might be correct that the executive branch seems to be exercising some form of legislative power by interpreting statutes,[15] this may be preferable to the largely unelected judicial branch exercising this legislative power. If the legislature has written a vague statute, knowing that the Chevron doctrine exists, at least it can be said that the legislature more so intends for the administrative agency, with its supposed expertise, to fill any “gap”[16] in the statute than for the judicial branch to do so.[17] Thus, if the judicial branch were to overturn Chevron and begin interpreting statutes de novo, they might in a real sense be thwarting legislative intent and aggrandizing their own power at the expense of the legislature. Furthermore, if the public is unhappy with an interpretation by an agency, they can show their displeasure at the polls by voting in a different party to enforce the law, to write the law, or both. When a judge makes such a determination, especially one which will be protected under stare decisis, the dissatisfied public has nowhere to turn given the appointment and life-time tenure of federal judges.[18] It is rather ironic that Gorsuch, an avowed originalist, thinks that it’s better for the courts to insert themselves into the legislative process than for administrative agencies to do so, when originalists are usually against such judicial activism.[19]

In addition to the separation of powers and accountability concerns inherent in reversing Chevron, there are sure to be practical problems in removing the doctrine. For example, take a piece of legislation such as the Clean Air Act. Do we want a court to be determining the level at which the National Ambient Air Quality Standards (NAAQS) are set? Currently, the EPA sets them at a level “allowing an adequate margin of safety . . . requisite to protect the public health.”[20] This is a very scientific, esoteric process that courts are ill-equipped to handle. Also, such a determination must remain flexible and ready to be adjusted in response to new environmental concerns and conditions, and agencies are specifically structured by the Administrative Procedure Act’s Notice and Comment in order to react to such changes. The judiciary is not. But in “a world without Chevron,” as Gorsuch envisions, the courts would have to reevaluate all of the science, likely little of which they would understand, each time the EPA wanted to modernize its regulations and would face an uphill battle interpreting a statute in a different way given stare decisis.

Conclusion

Gorsuch’s retort to the problems described above would likely be that rather than have the courts determine what say, a NAAQS should be set at, legislatures should simply be more thorough and clear in writing statutes in the first place. This addresses the central issue, the real “elephant in the room,”[21] to borrow Gorsuch’s own metaphor. In a perfect world, Congress would write laws that clearly lay out exactly what the body charged with enforcement should do. This is impossible. There will always be gaps to fill. As such, we are left with a choice. Do we prefer the gap-filler to be a body of semi-political experts exercising discretion checked by judicial review when they are unreasonable, or individuals armed with lifetime appointments and no expertise, making politically unaccountable judgements? I’ll take the former.

Joseph Crusham, J.D., University of California, Berkeley, School of Law, 2018; B.A., The Ohio State University, Columbus Ohio, 2015.

2. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016) (Gorsuch, J., concurring), https://casetext.com/case/gutierrez-brizuela-v-lynch. ↑

3. See, e.g., Shane Goldmacher, Josh Gerstein, & Matthew Nussbaum, Trump Picks Gorsuch for Supreme Court, Politico (Jan. 31, 2017, 8:06 PM) (“Legal experts see him as largely falling in line with the conservative bloc, as did Scalia.”) http://www.politico.com/story/2017/01/trump-gorsuch-supreme-court-234464 [https://perma.cc/7Y4D-FCD4]; Julie Hirschfeld Davis & Marc Landler, Trump Nominates Neil Gorsuch to the Supreme Court, N.Y. Times (Jan 31. 2017) (describing Gorsuch as a “reliably conservative figure in Justice Scalia’s mold, but not someone known to be divisive”) https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html [https://perma.cc/7XZK-JM49]. ↑

4. See 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/ [https://perma.cc/CDF8-UZ6X]. ↑

5. See United States v. Nichols, 784 F.3d 666, 667 (10th Cir. 2015) (Gorsuch, J., dissenting) (arguing that because prosecutors were given too much discretion in enforcing the Sex Offender Registration and Notification Act, it was an impermissible delegation of legislative power to the executive), https://casetext.com/case/united-states-v-nichols-93. ↑

6. Chevron v. Nat’l Res. Def. Council, 467 U.S. 837 (1984), https://casetext.com/case/chevron-inc-v-natural-resources-defense-council-inc-american-iron-and-steel-institute-v-natural-resources-defense-council-inc-ruckelshaus-v-natural-resources-defense-council-inc. ↑

7. See e.g., Jonathan H. Adler, Should Chevron be reconsidered? A federal judge thinks so., The Volokh Conspiracy (Aug. 24, 2016) (arguing that while Chevron should be “constrained,” overruling it might be going too far), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/24/should-chevron-be-reconsidered-a-federal-judge-thinks-so/?utm_term=.ad348bc1c9c9 [https://perma.cc/3DKY-ED38]; Paul Larkin, The World After Chevron, The Heritage Foundation (Sept. 8, 2016) (“ . . . the central argument against Chevron is that it conflicts with a fundamental principle of our constitutional system: The federal courts have the responsibility to interpret federal law and enter final judgments reflecting how that law applies to the facts in a particular case), http://www.heritage.org/courts/report/the-world-after-chevron [https://perma.cc/27CR-UK6C]. ↑

8. Regulatory Accountability Act of 2017, H.R. 5, 115th Congress (2017) https://www.congress.gov/bill/115th-congress/house-bill/5. ↑

9. See Juan Carlos Rodriguez, GOP Push To 'Repeal' Chevron Deference May Come Up Short, Law 360 (January 5, 2017, 8:11 PM) (“It will be difficult to find the votes in the Senate.”), https://www.law360.com/articles/877708/gop-push-to-repeal-chevron-deference-may-come-up-short [https://perma.cc/3HLJ-ZAKS]. ↑

10. See id. (Arguing that the Regulatory Accountability Act “doesn’t, with a stroke of a pen, mean Chevron’s dead. Not at all . . .” and that even if it passes “it will take years of litigation to figure out how it constrains a court’s determination of what statutory terms mean, and what Congress intended”). ↑

11. Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J., concurring), https://casetext.com/case/gutierrez-brizuela-v-lynch. ↑

12. King v. Burwell, 135 S.Ct. 2480, 2489 (2015) (quoting F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)), https://casetext.com/case/king-v-burwell-2.

    ↑

13. Id. ↑

14. Gutierrez-Brizuela, 834 F.3d at 1156 (Gorsuch, J., concurring), https://casetext.com/case/gutierrez-brizuela-v-lynch. ↑

15. Id. at 1153. ↑

16. Chevron, 467 U.S. 837 (1984), https://casetext.com/case/chevron-inc-v-natural-resources-defense-council-inc-american-iron-and-steel-institute-v-natural-resources-defense-council-inc-ruckelshaus-v-natural-resources-defense-council-inc. ↑

17. Gorsuch’s predecessor, the late Justice Antonin Scalia, certainly thought that Congress considered Chevron when writing statutes. See The Honorable Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, Duke L. J. 511, 517-17 (1989) (“Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known.”), http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3075&context=dlj [https://perma.cc/8ZAN-QF95]. ↑

18. It’s true that when a court decides on an interpretation of a statute, Congress can simply pass a new law that negates the judicial interpretation, and that in this very indirect way the public can elect new representatives to respond to judicial interpretations they do not agree with. The circuitous nature of this avenue for political accountability renders it basically non-existent, in a practical sense. ↑

19. Justice Scalia, a fellow originalist, saw Chevron as “a useful constraint on activist courts.” Jonathan H. Adler, Gorsuch’s judicial philosophy is like Scalia’s — with one big difference, Wash. post (Feb. 1, 2017), https://www.washingtonpost.com/opinions/gorsuchs-judicial-philosophy-is-like-scalias--with-one-big-difference/2017/02/01/44370cf8-e881-11e6-bf6f-301b6b443624_story.html?utm_term=.e20f3acca633 [https://perma.cc/L4BS-4GEC]. ↑

20. 42 U.S.C. § 7409(b)(2) (1977), https://www.law.cornell.edu/uscode/text/42/7409. ↑

21. Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring), https://casetext.com/case/gutierrez-brizuela-v-lynch.