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Much Ado About Nothing

April 22, 2017

MUCH ADO ABOUT NOTHING: ELIMINATING CHEVRON DEFERENCE WOULD LIKELY HAVE A MINIMAL IMPACT ON SUPREME COURT JURISPRUDENCE

By: Jessica Sharpe, Volume 101 Staff Member

Neil Gorsuch’s nomination to the Supreme Court was confirmed by the Senate in recent weeks.[1] Throughout his confirmation hearings, his views on Chevron deference[2] sparked controversy.[3] This Post argues that the controversy may not be truly warranted.

I. CHEVRON DEFERENCE BACKGROUND

The 1984 Supreme Court case Chevron U.S.A. v. NRDC established what is now known as Chevron deference.[4] In the case, the Court found that the new interpretation of the Clean Air Act by the EPA under the Reagan administration was owed deference under a new judicial test.[5] The Chevron deference test is often referred to as a two-step test.[6] The first step asks whether the statute is ambiguous. If the statute is not found to be ambiguous, the clear meaning of the law applies and inquiry ends. If the statute is found to be ambiguous, the court then moves onto the second step, which asks whether the agency’s interpretation of the ambiguous statute is reasonable.[7] If the agency’s interpretation is reasonable, the agency is given deference.

As a result, federal courts will only reverse a federal agency’s interpretation of a statute within its agency’s specialization if it is arbitrary, capricious, or clearly contrary to law.[8] The idea of judicial deference to federal agencies was furthered by the Brand X case.[9] Under Brand X, if a federal agency interprets a law that runs contrary to a circuit court’s previous interpretation of the law and that interpretation is entitled to Chevron level deference, the circuit court must follow the agency’s new interpretation as long as it is reasonable and the change is justified.[10]

II. SCALIA AND GORSUCH COMPARISON

Many people have compared Gorsuch with the late Justice Scalia, hailing him as a worthy and like-minded successor to the late Supreme Court Justice.[11] However, one area where their viewpoints seem to diverge is in regards to Chevron deference.[12] The late Justice Scalia was at times a defender of Chevron deference, reasoning that judges are not as capable as experts in particular fields in interpreting technical areas of law. [13] However, in other instances, he seemed to simply ignore it. [14] Gorsuch, on the other hand, doubts the validity and wisdom behind Chevron deference.[15]

III. GORSUCH’S VIEW ON CHEVRON VIA GUTIERREZ-BRIZUELA V. LYNCH

Gorsuch articulated his views in a concurring opinion from his time on the Tenth Circuit.[16] In Gutierrez-Brizuela v. Lynch, Gorsuch wrote a lengthy concurrence arguing against Chevron deference. Justice Gorsuch called Chevron deference the “elephant in the room” and argued that both Chevron and Brand X allow “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”[17] He further argues that they “concentrate federal power” in a way that does not seem to match up with the framers’ design for the Constitution.[18] Despite the fact that Gorsuch acknowledges that the Chevron doctrine is indeed judge-made, he calls it “a judge-made doctrine for the abdication of the judicial duty.”[19] Though the courts still determine if a statute is ambiguous and whether the agency’s interpretation is reasonable, Gorsuch argues at no point do they independently decide what a statute means.[20] The job given to Article III federal judges is to independently interpret the laws of the United States.[21] In fact, according to Gorsuch, this independent interpretation is fundamental to the design of the Constitution and the balance of powers depends on the judiciary exercising its ultimate role independently.[22] Instead, under Chevron, Gorsuch argues the executive branch is taking over that role in an unconstitutional manner and telling the judicial branch how to interpret the laws of the United States, while also usurping the role of the legislative branch.[23]

IV. GORSUCH’S HEARINGS

In Gorsuch’s Supreme Court nominee hearings, he was repeatedly asked about Chevron deference by Democratic members of Congress. [24] Chevron deference appears to have become a partisan issue as of late, with Democrats defending the wisdom of Chevron deference and conservative members of Congress not only supporting Gorsuch, but also introducing legislation to overrule Chevron.[25] Supporters of Chevron deference argue that federal agencies should be allowed to promulgate regulations in areas of their domain because of legitimacy, expertise, and the rule of law.[26] But what would actually be the effect if Chevron was overruled? Would conservatives benefit as deregulation increased? Or would there be any effect at all?

When Ronald Reagan was in office, Chevron deference was a tool used by agencies to effect deregulation.[27] Later, when Democrats controlled the White House, Chevron deference became a tool used to promote more regulation.[28] Several legal scholars have conducted empirical studies that analyze how Chevron deference has actually been applied and whether overturning Chevron would have serious effects on federal administration’s power to interpret ambiguous statutes.[29]

V. ACTUAL IMPACT OF CHEVRON DEFERENCE

According to a recent law review article by William Eskirdge, the Chevron deference doctrine operates as more of a canon than a precedent.[30] By this, the author means that federal courts do not defer to federal agencies with as much frequency as one would assume. In fact, Eskridge, after empirically analyzing judicial opinions concerning federal administrative regulations in the United States Court of Appeals for the District of Columbia Circuit, found that when judges do not agree with an agency’s interpretation of a statute, they simply overturn it without bothering to cite Chevron.[31] On the other hand, when judges do not wish to overturn an agency’s regulations, they cite Chevron and uphold the agency’s interpretation.[32] Other empirical studies of Chevron deference have found that generally, Chevron deference does not constrain Supreme Court Justices from independently interpreting law.[33] In fact, one study found that after analyzing the voting pattern of each Supreme Court Justice, “none of the Justices maintains a coherent voting pattern consistent with the practice of treating Chevron and other deference regimes as precedents entitled to stare decisis effect.”[34] However, there is empirical evidence that Chevron deference does have a constraining effect on lower court judges.[35]

CONCLUSION

Ultimately, Chevron deference’s overall impact has been overplayed by both the left and the right in the recent political battle over Gorsuch’s nomination and the administrative nature of government in general. As George Washington law professor Jonathan Turley said, “I would caution those who say [there] is going to be an apocalyptic moment” if Chevron deference is overruled.[36] Even if Chevron deference is eliminated, the federal judiciary simply does not have the resources to overrule and analyze each regulation or decision made by the agencies. It would be “fanciful to think we can live in such a complex world without regulators empowered to interpret regulation” and would be unworkable for all interpretation powers would be stripped from federal agencies.[37] Ultimately, it is also important to remember that Chevron deference does not simply promote a conservative or liberal agenda. It is shaped by whichever party controls the executive branch.[38] All in all, though there has been much ado about Justice Gorsuch’s view of Chevron deference, evidence suggests that his appointment to the Supreme Court could nevertheless have minimal impact on the doctrine.

  1. Ariane de Vouge & Dan Berman, Neil Gorsuch Confirmed to the Supreme Court, CNN (Apr. 7, 2017), http://www.cnn.com/2017/04/07/politics/neil-gorsuch-senate-vote. ↑
  2. Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984). ↑
  3. Allan Smith, Trump’s Supreme Court Nominee Just Had His First Real Day of Grilling and There’s More to Come, Bus. Insider (Mar. 22, 2017), http://www.businessinsider.com/neil-gorsuch-senate-confirmation-hearing-2017-3. ↑
  4. Chevron, 467 U.S. at 842–43 (1984). ↑
  5. Id. ↑
  6. David Kemp, Chevron Deference: Your Guide to Understanding Two of Today’s SCOTUS Decisions, Justicia L. Blog (May 21, 2012), https://lawblog.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions. ↑
  7. Id. ↑
  8. Lima v. Holder, 758 F.3d 72 (1st Cir. 2014). ↑
  9. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1000 (2005) (holding that if Chevron deference was owed to a federal agency on a particular issue but a federal court published an opinion interpreting the issue before the agency did, the federal court must subsequently defer to the agency’s newly settled interpretation if it “it adequately justifies the change.”). ↑
  10. Id. ↑
  11. Adam Liptak, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style, N.Y. Times (Jan, 31, 2007), https://www.nytimes.com/2017/01/31/us/politics/neil-gorsuch-supreme-court-nominee.html?_r=0. ↑
  12. 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=.2171359c82fe. ↑
  13. Steven Davidoff Solomon, Should Agencies Decide Law? Doctrine May Be Tested at Gorsuch Hearing, N.Y. Times (Mar. 14, 2017), https://www.nytimes.com/2017/03/14/business/dealbook/neil-gorsuch-chevron-deference.html. ↑
  14. Id. ↑
  15. Guiterrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). ↑
  16. Id. ↑
  17. Id. ↑
  18. Id. ↑
  19. Id. at 1152. ↑
  20. Id. ↑
  21. Id. ↑
  22. Id. ↑
  23. Id. at 1153. ↑
  24. Smith, supra note 3. ↑
  25. Id.; Michael Macagnone, House Bill Passes Ending Chevron Deference, Law 360 (Jan. 11, 2017), https://www.law360.com/articles/879235/house-passes-bill-ending-chevron-deference. ↑
  26. William Eskridge, Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727 (2010). ↑
  27. Id. ↑
  28. Id. ↑
  29. Id. ↑
  30. Id. ↑
  31. Id. ↑
  32. Id. ↑
  33. Id. ↑
  34. Debra Cassens Weiss, Gorsuch Confirmation Hearings, Day 4: He is Portrayed as Empathetic, Yet Bad for the Little Guy, ABA J., (March 23, 2017) http://www.abajournal.com/news/article/gorsuch_confirmation_hearings_day_4_aba_testimony_expected. ↑
  35. Eskridge, supra note 26. ↑
  36. Cassens Weiss, supra note 34. ↑
  37. Eskridge, supra note 26. ↑
  38. Liptak, supra note 11. ↑
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