Chevron Doctrine & Separation Of Powers

NOAH FELDMAN: “Liberals and conservatives alike have deployed Chevron over the years …the truth is that Chevron deference isn’t inherently liberal or conservative. The real issue at stake is whether the judiciary should have the last word on the meaning of the law.” (Noah Feldman, Op-Ed, “Get Ready, Supreme Court Fans. Brush Up On Your Chevron Doctrine,” Bloomberg, 2/3/17)

‘Judge Gorsuch Has Increasingly Criticized [Chevron] As An Abdication Of Judicial Responsibility’

“Judge Gorsuch has increasingly criticized that rule as an abdication of judicial responsibility. In some of his dissenting and concurring opinions on the U.S. Court of Appeals for the 10th Circuit, he has called for reconsideration of the Chevron decision.” (“Trump's Supreme Court Nominee Skeptical Of Federal Agency Power,” NPR, 3/17/17)

• “In a series of recent opinions, Gorsuch has questioned the modern administrative state's twin pillars: Congress's delegation of immense power to the agencies (which courts are loath to prohibit), and the courts' deference to the agencies' expansive interpretations of their own powers.” (“Higher Justice,” Weekly Standard, 2/20/17)

‘Chevron Deference Is All About Who Decides The Law: Agencies Or Judges. That’s An Important Question About The Law And Separation Of Powers’

“The principle of the Chevron case says that a federal court will defer to a federal agency’s views. ... It may sound rather innocuous and bland, but it speaks to separation-of-power issues, as well as to how much power we want to give the administrative state, the array of federal agencies that administer and promulgate regulations.” (“Should Agencies Decide Law? Doctrine May Be Tested at Gorsuch Hearing,” The New York Times, 3/14/17)

“Chevron deference is all about who decides the law: agencies or judges. That’s an important question about the law and separation of powers.” (“Should Agencies Decide Law? Doctrine May Be Tested at Gorsuch Hearing,” The New York Times, 3/14/17)

• “Is the doctrine of Chevron deference compatible with traditional notions of constitutional separation of powers? Legal academics (and at least one justice) have begun to raise questions about the propriety and desirability of the Chevron doctrine — the doctrine that provides that courts must defer to permissible agency interpretations of ambiguous statutory language.” (“Should Chevron Be Reconsidered? A Federal Judge Thinks So” Washington Post, 8/24/16)

• “One facet of Chevron deference is agencies are not only given the freedom to determine what the law is, but they can change that interpretation at any time... Given many federal regulations not only have the force of law but can include criminal penalties, some critics have likened the modern administrative state to the 16th century British Star Chamber.” (“Bureaucrats May Be The Losers If Gorsuch Wins A Seat On Supreme Court,” Forbes, 1/26/17)

“Many Gorsuch defenders argue that having someone on the Supreme Court who is less deferential to agencies should reassure those who don't trust the Trump administration.” (“Trump's Supreme Court Nominee Skeptical Of Federal Agency Power,” NPR, 3/17/17)

JUDGE GORSUCH: ‘Chevron And Brand X Permit Executive Bureaucracies To Swallow Huge Amounts Of Core Judicial … Power,’ ‘That’s A Problem For The Judiciary’

JUDGE NEIL GORSUCH: “We recently confronted the thorny problem what to do when an executive agency, exercising delegated legislative authority, seeks to overrule a judicial precedent interpreting a congressional statute.  In our constitutional history, after all, judicial declarations of what the law is haven’t often been thought subject to revision by the executive, let alone by an executive endowed with delegated legislative authority.” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (2016))

• JUDGE GORSUCH: “There’s an elephant in the room with us today.  We have studiously attempted to work our way around it and even left it unremarked.  But the fact is Chevron and Brand X 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.” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (2016) (Concurring))

• JUDGE GORSUCH: “[T]he founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights.  What would happen,for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts?  They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice.  Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising — along the way, too, grave due process (fair notice) and equal protection problems.” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch. J., concurrence).)

• JUDGE GORSUCH: “Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, 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. ... Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X’s terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies. … Brand X still risks trampling the constitutional design by affording executive agencies license to overrule a judicial declaration of the law’s meaning prospectively, just as legislation might — and all without the inconvenience of having to engage the legislative processes the Constitution prescribes. A form of Lawmaking Made Easy, one that permits all too easy intrusions on the liberty of the people.” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (2016) (Concurring))

• JUDGE GORSUCH: “Whatever the agency may be doing under Chevron, the problem remains 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. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired…” (Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (2016) (Concurring))

Judge Gorsuch On The De Niz Robles Case: ‘Just Describing What Happened Here Might Be Enough To Make James Madison’s Head Spin’

JUDGE GORSUCH: “In case you think the founders’ faith in the liberty-protecting qualities of the separation of powers is too ancient to be taken seriously, let me share with you the story of Alfonzo De Niz Robles. Mr. De Niz Robles is a Mexican citizen, married to a U.S. citizen, and the father of four U.S. citizens. In 1999, he agreed to depart the country after being apprehended by immigration authorities. For two years his wife tried without luck to secure him a spousal visa. At that point, Mr. De Niz Robles decided to return to the United States and try his own luck at applying for lawful residency. In doing so, though, he faced two competing statutory provisions that confused his path. One appeared to require him to stay outside the country for at least a decade before applying for admission because of his previous unlawful entry. Another seemed to suggest the Attorney General could overlook this past transgression and adjust his residency status immediately. In 2005, my colleagues took up the question how to reconcile these two apparently competing directions. In the end, the Tenth Circuit held that the latter provision controlled and the Attorney General’s adjustment authority remained intact. And it was precisely in reliance on this favorable judicial interpretation that Mr. De Niz Robles filed his application for relief. But then a curious thing happened.  The Board of Immigration Appeals (BIA) issued a ruling that purported to disagree with and maybe even overrule our 2005 decision, one holding that immigrants like Mr. De Niz Robles cannot apply for an immediate adjustment of status and must instead always satisfy the ten-year waiting period. In support of its view on this score, the BIA argued that the statutory scheme was ambiguous, that under Chevron step 2 it enjoyed the right to exercise its own “delegated legislative judgment,” that as a matter of policy it preferred a different approach, and that it could enforce its new policy retroactively to individuals like Mr. De Niz Robles. So that, quite literally, an executive agency acting in a faux-judicial proceeding and exercising delegated legislative authority purported to overrule an existing judicial declaration about the meaning of existing law and apply its new legislative rule retroactively to already completed conduct. Just describing what happened here might be enough to make James Madison’s head spin.” (“Of Lions And Bears, Judges And Legislators, And The Legacy Of Justice Scalia,” Case Western Law Review, Vol. 66, Issue 4, 2016)