Not surprisingly, at Neil Gorsuch’s confirmation hearing, the Democratic Senators didn’t succeed in getting Judge Gorsuch to reveal much about his views.  Instead, Gorsuch insisted that “if I were to start telling you which are my favorite precedents or which are my least favorite precedents or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases.  That’s not a fair judge.” But, Gorsuch has already done exactly that, writing an unusual concurring opinion that criticized Chevron U.S.A. Inc. v. Natural Resources Defense Council, a unanimous 1984 Supreme Court decision that has been reaffirmed many times.  Gorsuch’s critique of Chevron merits a close look because it reveals a vision that is profoundly anti-democratic and that makes it exceedingly difficult to rein in large corporations.

In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a 23 page concurrence arguing that Chevron should be overturned.  At his confirmation hearing, Gorsuch explained his actions by saying, “my job is when I see a problem to tell my boss.”  I can’t help noting that only a judge who has forgotten what it’s like to have a real boss would describe the Supreme Court justices as his “bosses,” since they have no ability to affect either his job tenure or his working conditions.  As Eric Posner has pointed out, Gorsuch’s views on Chevron place him far outside the mainstream, and to understand why, it’s worth reviewing both the holding and the rationale for the Chevron decision.  Chevron involved the validity of regulations adopted by the Environmental Protection Agency (ironically under the leadership of Gorsuch’s mother) during the Reagan Administration. The regulations at issue were challenged by environmental groups, who argued that they were inconsistent with the purposes underlying the Clean Air Act.  The Court held that if a statute is silent or ambiguous with respect to a specific issue, the court should not simply impose its own construction on the statute, but instead should defer to the construction of the agency charged with administering that statute as long as the agency’s interpretation is “reasonable.”  This means that sometimes the Court will uphold the agency’s construction even though the Court might have reached a different result if the question had initially arisen in a judicial proceeding.

Gorsuch argued that Chevron violates the principle of separation of powers, and concentrates too much power in the executive branch.  He described it as adding “prodigious new powers to an already titanic administrative state, “which he insisted are “hard to square with the Constitution of the founders’ design.”  Of course, as Chief Justice Marshall explained, “it may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution.”  In other words, the framers’ design had to be flexible enough so that the government could keep pace with a company like Wal-Mart that has $482 billion in annual revenues.  What the Supreme Court recognized in Chevron is that statutes cannot be written in a way that addresses every conceivable fact-pattern, and for regulation to work, administrative agencies must be allowed some leeway to fill in those inevitable gaps.  In Chevron, the Court offered three reasons why it makes sense for courts to defer to agencies on these matters.  First, the construction of a statute by an administrative agency typically involves a policy choice.  Second, judges are not expert in the field, whether the field is environmental regulation or labor relations.  Third, judges are unelected and have no constituency.  By contrast, even though administrative agencies are not directly accountable to the electorate, the Chief Executive is, and the public can and will hold the President accountable if they don’t like the choices made by administrative agencies.

To see how this works in practice, take a look at a decision by Judge Garland in a case where the National Labor Relations Board held that an employer violated the NLRA when it refused to meet with a union bargaining committee during nonworking hours and also refused to grant unpaid leave to the members of the union’s bargaining committee.  The employer insisted that if workers wanted to take part in negotiations, they would need to use their allotment of paid time off, which they would otherwise use for vacation, illness, or personal business.  Nothing in the statute specifically addressed the hours when bargaining should take place, or whether employees have a right to unpaid leave to take part in negotiations.  But, the Board found that the employer’s policy illegally interfered with its employees’ choice of representatives because “employees who need their [paid time off] to accommodate substantial family responsibilities, for example, would not be able to serve.”  The D.C. Circuit recognized that the Board had made a policy decision, but that was a reason to defer to the Board. As the court explained, “the NLRB has the primary responsibility for developing and applying national labor policy.”

The NLRA resembles many other statutes in that it contains broad language (e.g. the duty to bargain “in good faith”) that must be applied to endless variations of facts. Justice Scalia, writing for a unanimous Court, explained that Chevron is rooted in a background presumption of Congressional intent – when Congress “left ambiguity in a statute meant for implementation by an agency, [it] understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”  Gorsuch’s suggested approach would be to take that power away from the agencies, which are at least indirectly accountable to the electorate, and place it in the hands of unelected judges who have life tenure.

I’m sure I won’t agree with many of the decisions issued by Trump’s NLRB.  But, in 2020 we will elect a new President, and a new Board will likely overturn some of those rulings.  Some scholars have criticized the Board for shifting policy from one Administration to the next, but to me those shifts are far preferable to having five Supreme Court Justices with life tenure setting national labor policy.  

Perhaps even scarier than the idea of the Supreme Court substituting its judgment for each agency’s judgment across the entire government is Gorsuch’s suggestion that it might be unconstitutional for Congress to delegate authority to agencies to fill in the gaps in legislation.  If Congress can’t delegate this authority to agencies, then it would be virtually impossible for Congress to enact any meaningful regulation.  Recall how much criticism there was because the Affordable Care Act was 2,700 pages long.  But the law was only that “short” because Congress delegated authority to the Secretary of Health and Human Services to draft thousands of additional pages of regulations.  And here we get back to Gorsuch’s ultimate goal.  He wants to tame what he referred to as the “titanic administrative state.”  That would all be well and good if Gorsuch could use his originalism as a time machine to bring us back to the days of the yeoman farmer or craftsman. But the unfortunate reality is that we are living in an era of colossal multi-billion dollar corporations, and without the power of the administrative state, they will run roughshod over all of us.