Judge Gorsuch and Administrative Law

by Ed Whelan

Judge Gorsuch is very attentive to the separation-of-powers concerns that modern administrative law presents.

In Gutierrez-Brizuela v. Lynch (2016), Gorsuch, writing for a unanimous panel, granted an illegal alien’s petition for review of a Board of Immigration Appeals order that he was ineligible to apply for lawful residency. In a separate concurrence, Gorsuch argued that the Supreme Court’s rulings in Chevron v. Natural Resources Defense Council (1984) (courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers) and NCTA v. Brand X Internet Services (2005) (courts must overrule their own rulings about the meaning of existing laws in favor of later agency interpretations that satisfy Chevron) “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 called for the Supreme Court to reconsider whether the Chevron doctrine is sound.

It’s worth emphasizing that the Chevron rule of judicial deference to administrative agencies obviously has no inherent ideological valence. How it operates in practice depends on who is running the agencies. The Tenth Circuit’s earlier rulings on the legal issue in Gutierrez-Brizuela illustrate the point: The court’s de novo interpretation of the statutes in 2005 yielded a result much more favorable to illegal aliens than the court’s 2011 decision deferring to the BIA.

Chevron itself was a unanimous ruling by a six-member Court. (Three justices were recused.) Justice Scalia had been, at least until late in his judicial career, one of the most ardent advocates of Chevron. Academic supporters and critics transcend the usual ideological lines. See, e.g., Jack Beermann, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Connecticut Law Review (2010).

Folks on the Left who fear what a Trump administration might do may acquire a sudden new appreciation for de novo (rather than deferential) judicial review of agency action. Overruling Chevron would force Congress to take more accountability for its lawmaking and would discourage it from simply punting issues to the bureaucracy.

In United States v. Nichols (2015), Gorsuch dissented from the Tenth Circuit’s denial of en banc rehearing in a case that presented the question whether a federal law, the Sex Offender Registration and Notification Act, required convicted sex offenders to notify authorities if they planned to leave the country. (The Supreme Court granted review in this case and ruled that the law did not require notice.) In addition, Gorsuch highlighted an underlying constitutional question: whether it was permissible for SORNA to delegate to the Attorney General the authority to decide whether and when sex offenders convicted before the date of SORNA’s enactment were required to comply with the law’s registration requirements. Gorsuch’s opinion probes the contours of the nondelegation doctrine and concludes that a law like SORNA that would have Congress “effectively pass off to the prosecutor the job of defining the very crime [i.e., nonregistration] he is responsible for enforcing” is “[b]y any plausible measure … a delegation run riot, a result inimical to the people’s liberty and our constitutional design.”

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