Democratic Senators Grill Gorsuch on Agency Deference

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By Rebecca Wilhelm

Several Democratic senators challenged Neil Gorsuch about his views on agency deference during his Supreme Court confirmation hearing, with one senator suggesting that he was nominated by President Trump specifically to further the administration’s deregulatory agenda.

Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Senate Judiciary Committee, said Gorsuch’s views on Chevron deference would undermine agencies’ ability to adapt decades-old environmental laws to modern problems.

Congress relies on agency experts to write the rules and guidelines to carry out the Clean Air Act, the Clean Water Act and other environmental statutes, Feinstein said. If agencies like the Environmental Protection Agency lose their authority to interpret ambiguous statutes—an authority enunciated by the Supreme Court in the 1984 Chevron decision—the government will be unable to address “real-world challenges,” she said.

Sen. Al Franken (D-Minn.) also said Gorsuch’s confirmation would threaten environmental protections.

No one wants senators “to decide how much lead can be in your water,” Franken said during questioning March 21. But President Donald Trump’s nomination of Gorsuch was intended to upend the “landmark administrative law case” that says courts should be wary of overruling decisions by scientific experts without good legal reasons, Franken said.

Feinstein asked Gorsuch why Congress can’t legislate by allowing scientists to write administrative rules that are in their areas of expertise. Under Chevron, courts defer to implementing rules and regulations written in accordance with reasonable agency interpretations of ambiguous statutes.

Gorsuch said that there’s nothing wrong with leaving fact-finding to scientists and other agency experts. “No one is suggesting that scientists shouldn’t get deference,” testified Gorsuch, 49, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver.

But courts should be the final arbiters of what the law means and applying the Chevron doctrine to agency action often subverts the judiciary’s intended role, Gorsuch testified.

Frustrated by Supreme Court Precedent

For example, Gorsuch said he was frustrated by the result that Supreme Court precedent compelled the U.S. Court of Appeals for the Tenth Circuit to reach in Gutierrez-Brizuela v. Lynch, an immigration law case.

Gutierrez involved two conflicting immigration statutes and how long an illegal alien had to wait before applying for lawful residency, Gorsuch said. Judicial precedent says that the first statute should control because the alien relied on it. But the federal Board of Immigration Appeals found that the later statute controlled, and because of the Supreme Court’s decisions in Chevron and Brand X, the Tenth Circuit had to defer to the agency’s interpretation ( Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 2016 BL 273118, 10th Cir. ).

That result is reminiscent of the Peanuts cartoon where Lucy holds the football for Charlie Brown to kick and then pulls it away at the last second, Gorsuch said. “A person in this country should be able to rely on the law as it is.”

Gorsuch wrote the majority opinion upholding the immigration board’s interpretation but explained his views on agency deference in a separate concurrence. He said he wrote separately to raise questions on these issues “for his bosses” on the Supreme Court.

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,” Gorsuch wrote in his concurrence. “Maybe the time has come to face the behemoth.”

Gutierrez is an example of where deferring to an agency ultimately “hurt the little guy,” Sen. John Cornyn (R-Texas) said during the first round of questioning. “Unelected bureaucrats” shouldn’t have latitude to issue their own statutory interpretations.

It’s a separation of powers issue and a “matter of due process and fair notice,” Gorsuch said.

Explaining Chevron and Brand X

Chevron is an obscure area of law, but for anyone who cares about clean air or clean water, it’s incredibly important, Franken said. He said Chevron ensures judges don’t discard agency expertise without good reason.

In Chevron USA Inc. v. Natural Resources Defense Council, Inc., the U.S. Supreme Court held that courts should defer to an agency’s reasonable interpretation of an ambiguous statute ( Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 21 ERC 1049 ).

The Chevron analysis is a two-step process: If the statute clearly speaks to the issue, the inquiry stops there. If the statute is silent or ambiguous, the court determines whether the agency’s interpretation is a permissible statutory construction. If so, the court defers to the agency.

The court took agency deference a step further in National Cable & Telecommunications Ass’n v. Brand X Internet Services. In that case, the court held that an agency’s interpretation of an ambiguous statute outweighs prior decisions of a federal appeals court, unless the court has held that the statute is not ambiguous ( Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 73 U.S.L.W. 4659 ).

Administrative State Before Chevron

The concept of Chevron is very straightforward, Sen. Orrin Hatch (R-Utah) said during questioning. “Deference allows unelected and unaccountable bureaucrats to rewrite the law.”

Overturning Chevron would have “titanic real-world implications” and “protections that matter to the American people would be compromised,” Sen. Amy Klobuchar (D-Minn.) said. Chevron guarantees that “complex regulatory decisions are made by the scientists and professionals best equipped to rise to these challenges,” like clean water protections for the Great Lakes and requirements for lead-based paints.

Courts have relied on the Chevron doctrine in thousands of cases, Klobuchar said. She asked Gorsuch whether he had considered the ramifications of overturning the precedent, which Justice Antonin Scalia championed for most of his 30 years on the court.

The country had an administrative state for 50 years before Chevron was decided, Gorsuch said. He said he would keep an “open mind” in considering whether to overturn the 1984 decision and possibly readopt an earlier legal doctrine holding that an agency interpretation deserves deference only if it is persuasive ( Skidmore v. Swift & Co., 323 U.S. 134 ).

Role of the Judiciary

Reexamining Chevron isn’t about whether regulations are good or bad but about restoring the separation of powers, Hatch said.

The court established the principle of judicial review in 1803’s Marbury v. Madison decision, Hatch said. The senator asked Gorsuch whether he agrees that it’s the judiciary’s job—and not the province of federal agencies—to say what the law is ( Marbury v. Madison, 5 U.S. 137 ).

Marbury—which established the power of federal courts to declare acts of Congress unconstitutional is the “cornerstone of the law,” Gorsuch said. “I don’t know anyone who wants to go back and reconsider that.”

Gorsuch said that Chevron deference isn’t a conservative or a liberal issue. While it advantages whoever “has their hands on the administrative state,” a “good judge doesn’t care who it advantages. A good judge looks at the law.”

If confirmed, Gorsuch would fill the seat vacated more than a year ago by the death of Scalia.

To contact the reporter on this story: Rebecca Wilhelm in Washington at rwilhelm1@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

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