I had the great fortune of beginning my career as a law clerk to Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, who is emerging as a leading contender to inherit the seat vacated by Justice Scalia’s tragic death. FantasyJustice, Empirical SCOTUS, and Professor Noah Feldman all list him as the frontrunner. This is no surprise (but a source of great excitement) to his many law clerks.
Many lawyers know Judge Gorsuch as one of the most talented writers on the federal bench. His law clerks, friends, and family also know that he is also a thoroughly decent person, a family man wholly devoted to his wife and two daughters. Someone who treats everyone with respect. He seemed to know everyone in the courthouse and, on many occasions, our trip back from lunch was detoured with a long conversation with someone who worked in the building (often swapping stories about fishing—one of the judge’s favorite pastimes).
What some may not know, however, is his deep commitment to the original understanding of the constitution and the rule of law. As Adam Feldman of Empirical SCOTUS puts it, “he regularly uses originalist principles in his decisions” and thus merits classification “as a heavy originalist based on the originalist indicators in his decisions.” He not only faithfully applies originalist methodology but articulately explains why our constitutional design remains relevant—and critical—over two hundred years later. If the President-elect’s goal is to replace Justice Scalia with someone who will carry the flag of originalism and teach it to the next generation through engaging opinions, public speeches (see, e.g., Law’s Irony and Of Lions and Bears, Judges and Legislators), and the honest hard work it requires, the choice is Judge Gorsuch.
I know the judge’s commitment to originalist principles first hand. Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. “We need to get this right,” was the motto—and right meant “as originally understood.” I can think of no one better to carry on Justice Scalia’s legacy and, in the words of Justice Thomas, “to stand firm in the defense of the constitutional principles and structure that secure our liberty.”
While Judge Gorsuch’s originalism is not confined to any one corner of the Constitution, some of his most impressive work has come in the arena of administrative law. This post examines three of Judge Gorsuch’s recent and noteworthy administrative law opinions, with an eye toward the rigorous originalism that motivated them.
Gutierrez-Brizuela v. Lynch
When Judge Gorsuch’s concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), came out it electrified administrative law scholars. (See here for my earlier commentary on the majority opinion.) In his concurrence, Judge Gorsuch criticized the Supreme Court’s decisions in Chevron and Brand X as upsetting the separation of powers contrary to “the Constitution of the framers’ design.”
Judge Gorsuch’s opinion started with an overview of the Framer’s separation of powers and explaining how this constitutional structure, to this day, is indispensable in protecting individual liberty. Chevron and Brand X, he warned, undermine these basic structural protections.
Chevron means that 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” Administrative Procedure Act “and one often likely compelled by the Constitution itself.” This judicial abdication means that “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 whims may rule the day.”
Brand X, for its part, requires courts to overrule their own apolitical declarations of what the law is “in favor of interpretations dictated by executive agencies.” But the Framers sought to ensure that judicial judgments “‘may not lawfully be revised, overturned or refused faith and credit by’ the elected branches of government” precisely “to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws.”
Instead, Judge Gorsuch explained, when the political branches disagree with a judicial decision “the Constitution prescribes the appropriate remedial process”—legislation. And while it’s true enough that “the legislative process can be an arduous one … that’s no bug in the constitutional design” but “the very point of the design.” Respecting the Constitution’s constraints on the executive’s ability to say what the law is not just empty formalism, the Judge explained. Under Chevron for example, the people are “required to guess whether the statute will be declared ‘ambiguous’” and “whether an agency’s interpretation will be deemed ‘reasonable.’” And even then, a person “must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.”
United States v. Nichols
In a dissent from denial of rehearing in banc United States v. Nichols, 784 F.3d 666 (10th Cir. 2015), Judge Gorsuch made a powerful case for the nondelegation doctrine as an essential structural safeguard of individual liberty.
As always, he started his analysis with the Constitution’s text. Article I § 1 provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” The Supreme Court has long interpreted this provision as limiting Congress’s ability to delegate legislative power, but it has rarely enforced that limitation. Judge Gorsuch would reinvigorate the doctrine. As the judge explained, the Framers separated “lawmaking and law enforcement” in order to thwart the ability of an individual or group to exercise arbitrary or absolute power.” The Framers also required any legislation “to endure bicameralism and presentment” in order to make deprivations of individual liberty “more arduous still.” Together and with others, “[t]hese structural impediments” were part of “a deliberate and jealous effort to preserve room for individual liberty.”
These structural safeguards, the judge explained, are important not just to preserve individual liberty but also to protect representative democracy. The nondelegation doctrine ensures that our elected officials make the important policy decisions in our society, not unelected administrators who are only loosely controlled by elected officials. And those concerns take on special concern when it comes to the criminal law, the context in Nichols. Living under “the tyranny … of a whimsical king,” the Framers were convinced of the danger of “placing the power to legislate, prosecute, and jail in the hands of the Executive.” The Founders believed that “‘the inefficiency associated with [the nondelegation doctrine] serves a valuable’ liberty-preserving ‘function, and, in the context of criminal law, no other mechanism provides a substitute.’”
De Niz Robles v. Lynch
Judge Gorsuch considered the retroactivity of agency adjudication in De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015), when an agency effectively overruled a judicial ruling under the auspices of Chevron and Brand X in a manner that upset deep-rooted reliance interests of unwitting individuals who had relied on the judicial decision. Because this bait-and-switch allowed the executive to wield legislative power and to do so without the traditional limits on legislative action, Judge Gorsuch rejected the agency’s attempt to apply its interpretation retroactively.
As the judge explained, legislation announces a prospective rule of general applicability and by design does so in service of political ends. To protect due process concerns of “fair notice, reasonable reliance, and settled expectations,” as well as equal protection concerns of “preventing the state from singling out disfavored individuals or groups and condemning them for past conduct they are now powerless to change,” new legislation is presumed to govern only prospectively. This presumption of prospectivity stretches back as long as the common law itself and inheres in the “legislative Powers” the Constitution vests in Congress.
By contrast, “judicial decisions ‘have had retrospective operation for near a thousand years’” and “[a]t common law there was no authority for the proposition that judicial decisions made law only for the future.” In accord with “this ancient tradition, the Supreme Court has forbidden federal courts from rendering purely prospective judicial decisions in the criminal arena, and the Court will barely tolerate the practice in the civil arena.” This ancient presumption, too, “was anticipated by the Constitution and inheres in its separation of powers.”
These paradigms, of course, are complicated when an agency exercises delegated authority under the aegis of Chevron. Still, Judge Gorsuch concluded that “the more an agency acts like a legislator—announcing new rules of general applicability—the closer it comes to the norm of legislation and the stronger the case becomes for limiting application of the agency’s decision to future conduct.” And at Chevron step two, an agency is acting very much like a legislator in creating a new rule of general applicability motivated by political ends and the same presumption of prospectivity that attaches to statutes should also apply to agency regulations.
Judge Gorsuch himself explains the lessons these cases and others teach in his Of Lions and Legislators speech: “[C]ombining what are by design supposed to be separate and distinct legislative and judicial powers poses a grave threat to our values of personal liberty, fair notice, and equal protection.” Judge Gorsuch’s protection of these values through consistent application of originalist principles makes him a worthy successor to Justice Scalia. His opinions reveal a judicial courage, not unlike Justice Scalia’s, to enforce the limits on governmental power set forth in our Constitution—a courage that finds its source in originalist principles. Those who believe in interpreting the constitution as originally understood would be lucky to have him on the Court.
David Feder earned his J.D. summa cum laude from Harvard Law School in 2014. He previously served as a judicial law clerk to Judge Gorsuch. He currently works as an associate at Munger, Tolles & Olson in Los Angeles. He is also currently an Olin-Searle Fellow at Harvard Law School and he thanks the Olin-Searle Fellows in Law program for support in writing this post. This post reflects the views only of the author and not any employer—past or present. Readers may contact the author at firstname.lastname@example.org.