Gorsuch on Chevron Deference, Round II

by Chris Walker — Thursday, Mar. 23, 2017@chris_j_walker

In a post entitled Gorsuch on Chevron, Eric Posner has posted the brief Q&A on Chevron deference from the first round of questioning of Judge Gorsuch before the Senate Judiciary Committee. For adlaw geeks, this exchange is definitely fascinating. During secound round, however, Judge Gorsuch went into much greater detail regarding his views on Chevron deference.

The video can be found here (starting around the 1:39:00 mark). Here’s the relevant part of the transcript:

Hatch: I am troubled by the suggestion that skepticism of Chevron, the Chevron case somehow means that one is somehow reflexively opposed to regulation. In my mind, such a charge is completely unfounded. After all it is important to remember that the Chevron deference first flourished as a reaction against liberal judges overturning the articles of the—or the actions of the Reagan Administration.

And many of my colleagues on the other side of the aisle have now suddenly rediscovered the importance of the Constitution’s limits on executive power, something they were conspicuously silent about when President Obama was in office, but are now quite enthusiastic about that now that a Republican is in the White House. And I find it surprising that they do not appreciate how Chevron impedes an independent judiciary’s ability to hold the executive branch accountable to the law.

Now, Judge Gorsuch, do you think your writings reflect a kneejerk attitude against common sense regulations?

Gorsuch: No, Senator.

Hatch: I do not either, even if you did not like those regulations. Is that fair?

Gorsuch: Senator, I have enforced all manner of regulation that is lawful without respect to my personal point of view.

Hatch: And sometimes you do not like some of them.

Gorsuch: Senator, whether I did or did not is not material.

Hatch: Well, I kind of would like to hear, though, even so. That is okay. In addressing the Chevron issue, many are invoking the importance of relying on scientific expertise. But despite how some are mischaracterizing the issue, Chevron deference is not the same thing as respecting the judgments of experts on technical matters, but rather about how to handle questions of law, questions on which judges themselves are experts. Nor does the issue of judicial deference call into question how much authority Congress can or should give agencies and their experts to write regulations.

Now, Judge Gorsuch, would you mind explaining the difference between all of these issues for those who may not be experts in administrative law?

Gorsuch: I would be happy to, Senator.

Hatch: Okay.

Gorsuch: Section 706 of the Administrative Procedures Act says basically two things, and I am paraphrasing. It says the courts are supposed to defer to the factual findings of agencies. So, to the extent you are talking about expert biologists, chemists, whatever manner of regulatory expertise we are talking about there, the courts are to defer to that and to take that seriously. And we do, just as we would, say, the factual finding of a jury or a district court judge that comes to us with a presumption of correctness. Clear error standard of review, very hard to meet.

Section 706, however, also goes on to say that when it comes to questions of the law, the courts are to interpret the law. Despite that command from this body, the courts have created a doctrine that says that if there is any ambiguity in the law, the agency gets to make the decision about what the law means.

And I have questions about that doctrine. I have raised questions about whether that is compatible with the plain language of Section 706 and the instruction of this body. And I have raised some questions that arise in a case that I actually had to deal with and how it would impact people, real people, if agencies can change the meaning of the law back and forth every four years, depending upon the outcome of an election.

For example, what happens when some individual—I am not worried about large corporations here honestly, Senator Hatch. They have got armies of lawyers, lobbyists. They can predict which way the wind is drifting in the agency. Sometimes they can capture the agency. I am worried about the ordinary American, and sometimes even the non-American.

The case happened to involve an undocumented immigrant. That is the case I actually dealt with, and there he faced two competing statutes. One said he could rely on and seek permission to remain in the country from the attorney general and get immediate discretionary relief. The other statute said he had to wait out of the country 10 years.

Our court interpreted the law as Section 706 says we are supposed to, and said the first statute controls because there was an apparent conflict between the two, and said he could rely on the opportunity to seek immediate discretionary relief. He did in reliance on that judicial precedent.

Then the agency comes in years later and says we are  wrong. Chevron. Sprinkle Chevron on it. We have to overturn our decision, and he has to leave the country, and wait not just 10 years now, but 13 or 14, or whatever it was. And to me, that raises questions not only about the consistency with Section 706 and the instructions that Congress has given us, but due process and fair notice.

If the law can change so easily, not through bicameralism and presentment to the President—bicameralism in this body, passage of both houses, presentment to the President—the order specified for law making in the Constitution. If the law can change so easily as that, where is the due process to the individual, the person who does not have an army of lawyers? How is he supposed to figure that out?

What about the equal protection problems when you allow an agency to pick and choose unfavored targets for changes in law? They do not have to go through bicameralism and presentment. They can pick their targets with more or less impunity, the least amongst us, the most vulnerable, the little guy, if you will, the person without the lobbyists.

And then, what about the separation of powers? I thought that judges were supposed to say what the law is. I thought that is what Justice Marshall said. And I thought the point of having judges decide the law is because you want someone who is neutral and independent to say what the law means, someone who does not have a dog in the hunt.

So, those were the questions I raised in that case. I did it as a circuit judge because part of my job as a circuit judge is to identify problems that I see for my bosses.

So, Senator Hatch, that is a long-winded answer, and I am sorry for it, but I hope it is helpful.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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