Judge Gorsuch and Chevron Doctrine: A Defense

by Aaron Nielson — Wednesday, Mar. 29, 2017@Aaron_L_Nielson

Judge Gorsuch does not need me to defend him.* His opinions are well written and speak for themselves. (It is not by accident that the American Bar Association deemed him “well qualified” for the Supreme Court!) But this blog has recently published three posts charging Gorsuch with not “car[ing] about precedent”; exhibiting “remarkable carelessness about the basic facts and legal background of a case, and a willingness to substitute armchair theorizing for rudimentary empirical inquiry”; and “completely misunderstand[ing] Chevron doctrine.” Although I don’t have a lot of time to write, and, frankly, I don’t think my analysis adds anything to what Gorsuch himself has already said, I’d like to chime in. Like everyone else here, I welcome a good debate, and I certainly agree that Gorsuch’s opinions merit close examination. That said, whatever one thinks of Gorsuch’s analysis in Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch, I strongly disagree that they reflect carelessness (or worse) on Gorsuch’s part. I urge you to read the opinions for yourself.

Unfortunately, I do not have time for a line-by-line response to the posts. But I do have ten thoughts.

First, both of Judge Gorsuch’s opinions were unanimous. So any criticism — if you are inclined to criticize — should not be directed at Gorsuch alone. Instead, it should also apply to Chief Judge Tymkovich and Judge Holmes (the co-panelists for De Niz Robles) and Judges McKay and Bacharach (the co-panelists for Gutierrez-Brizuela). Even a quick glance at those names demonstrates that many views were represented in these cases. And everyone agreed with Gorsuch. That doesn’t necessarily mean that Gorsuch was correct, of course. Unanimous panels can get the law wrong too. But this unanimity across two panels should give one pause before concluding the worst about Gorsuch.

Second, the posts do not link to the briefs in these cases. To be fair, I’m told that they are not available online. I understand that. Even so, I’d like to see the briefs before criticizing Judge Gorsuch.

Third, there is no evidence that the Tenth Circuit agrees that Judge Gorsuch ignored precedent. Unless I’m missing something, there is no indication that anyone called for en banc review — if so, it is not flagged in Westlaw. Perhaps a judge did so internally. But at least on the public record, there is no evidence of any such thing.

Fourth, it also appears from Westlaw that the United States did not ask the Supreme Court to grant certiorari. Again, this point is not dispositive; the government does not seek review of all opinions its lawyers think are wrongly decided. But it also is worth noting.

Fifth, I happen to think that Judge Gorsuch’s analysis about what it means for an agency to win under Chevron Step Two makes sense. If an agency argues it should win under Step 2, it must be arguing that it has discretion. Indeed, the logic of a Step 2 argument depends on there being discretion to exercise; otherwise it would be a Step 1 argument. And Chevron Step 2, in the Supreme Court’s words from Brand X, “involves difficult policy choices that agencies are better equipped to make than courts.” (Or, per Chevron itself, the agency wins at Step 2 if it has advanced “a reasonable policy choice.”) By definition, therefore, the BIA — by advancing a Step 2 argument — admitted it made a policy choice. Now, to be sure, the BIA may have thought that its decision was what Congress really wanted, and, in fact, that any other decision would be impermissible. But unless the agency admitted it was exercising its discretion — that, in fact, it could have retained the rule from Padilla-Caldera I but it choose not to — its argument would be doomed in the Tenth Circuit which had already ruled once on the question. One of the posts, however, says this: “As it’s impossible to read Briones or Padilla-Caldera II and believe what Judge Gorsuch has repeatedly said about them, it’s impossible for me to believe that Judge Gorsuch has read them — unless he believes that Chevron doctrine somehow can transform a plainly interpretive agency decision into a policy choice as a matter of law, which would make sense of Gorsuch’s claims, but be so eccentric a view as to raise serious concerns of its own.” If Gorsuch is eccentric, then I guess I am too! Because the BIA appears to have advanced a Step 2 argument, as a matter of law, it necessarily admitted that its decision was not compelled by Congress.

(If the agency believed, moreover, that it had no discretion — i.e., that this is a Step 1 situation — and that the Tenth Circuit’s view was wrong, the BIA could have said so, let the Tenth Circuit rule against it, and then seek either en banc or Supreme Court review. That doesn’t appear to be how the BIA litigated the case.)

Sixth, I agree that the challenge for Judge Gorsuch is to reconcile his approach to Brand X in adjudications with the Supreme Court’s opinion in Chenery II. And if Chenery II’s retroactivity analysis is read broadly, then Gorsuch’s opinion is in trouble. But is that the right way to read Chenery II? Here, reasonable minds can disagree. An analogous case is Free Enterprise Fund v. Public Company Accounting Oversight Board — or, rather, the D.C. Circuit’s opinion in that case. Humphrey’s Executor v. United States, understood broadly, would extend to the sort of double “for cause” removal at issue in Free Enterprise. But Judge Kavanaugh questioned whether it made sense to read the case so broadly. So he dissented from the D.C Circuit’s decision to apply Humphrey’s Executor to a new type of arrangement. And the Supreme Court agreed! Now, I don’t think Kavanaugh was irresponsible for taking that view in Free Enterprise, even though I also think it would have been understandable for him to join the panel decision. The truth is that it can be hard for a lower court judge to anticipate how a Supreme Court opinion, issued in one context, should apply to a new context. Just so here with Gorsuch. Unless I’ve missed it, the Supreme Court has never addressed what should happen when someone relies on a judicial decision that is later invalidated via Brand X by an agency exercising discretionary authority in an adjudication. Perhaps this is an ordinary Chenery II situation, but perhaps not. Again, reasonable minds can disagree.

Seventh, I don’t think the Tenth Circuit understands these opinions to apply outside of the fairly narrow context in which they arose. (This probably is why no one dissented, called for en banc review, or sought certiorari.) Maybe I’m wrong about that, but I don’t think so.

Eighth, I agree with Dan Hemel and this week’s posts that the Tenth Circuit’s approach to Brand X is now procedurally complicated. But I’m not sure it is that much more procedurally complicated than qualified immunity, and courts generally manage that okay (and I say that as someone who has critiqued aspects of the modern qualified immunity procedures). And you know what? The Supreme Court might consider the Tenth Circuit’s approach and reject it as too procedurally complex — that happens. But the Supreme Court hasn’t yet and it might never do so. In a world with Chevron, Brand X makes sense, at least analytically. But it also is strange that someone in the United States can’t rely on a judicial opinion about what the law means — even though “it is emphatically the province and duty of the judicial department to say what the law is.” How should the judiciary account for that strangeness? There can be good faith disagreement about how to answer that question. After all, Brand X, in application, can be complicated even when just dealing with prospective rules; throw in retroactivity via adjudication and it is more complicated still. As I read it, Judge Gorsuch’s analysis is thoughtful.

Ninth, I don’t think Judge Gorsuch’s concurrence merits the scorn in today’s post. He rightly acknowledges that it is for the Supreme Court to overrule Chevron. He offers reasons why it should. This is a question that lots (and lots and lots) of people have debated. I don’t think Gorsuch misunderstands the issue; he just thinks the Supreme Court should resolve the tensions differently than it has to date. As he explains, we lived without Chevron before and he thinks we could do so again. Truth to be told, I don’t have time to write out my own views on Chevron here, much less how they should interact with stare decisis — which are different questions. But I don’t think there is anything amateurish about Gorsuch’s views in his concurrence. And that is enough for purposes here.

And tenth, as my discussion hopefully demonstrates, whatever one thinks of these two Judge Gorsuch opinions, I don’t think the sharp rhetoric used regarding them is warranted. To be sure, it is fine to disagree with Gorsuch; he does not have a monopoly on wisdom. But his analysis is serious, because Gorsuch is a serious judge. I thus strongly disagree with the tone and rhetoric of this week’s posts. They make it sound like Gorsuch is a fool and a knave and probably both. After reading the two opinions, I don’t share that view at all.

In short, I respectfully dissent.

* As disclosure, I believe Judge Gorsuch should be confirmed and I’m pleased to do what I can to help that happen.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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