New Supreme Court Justice Will Try to Reduce Federal Agencies’ Influence

Employers could see more-predictable rules to interpret laws

By Allen Smith, J.D. Apr 11, 2017

​Sworn in to the Supreme Court on April 10, Judge Neil Gorsuch is a proponent of keeping the powers of government separate. He supports strengthening the judiciary's traditional role of interpreting the law, rather than ceding that function to the government agencies that write rules to implement Congress's laws.

Overturning a 33-year-old Supreme Court decision (Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984)), could help him accomplish that, if he can persuade other justices to join him.

If Chevron were overturned, "agencies aggressively stretching their agendas would inevitably be reined in if they could not make their case under the law," said Collin Udell, an attorney with Jackson Lewis in Hartford, Conn. It also would mean that "agency flip-flopping of positions would be minimized, making the rules more predictable for both employers and employees alike."

'Chevron Deference'

 In Chevron, the Natural Resources Defense Council, an environmental protection group, challenged an Environmental Protection Agency (EPA) regulation issued during the Reagan administration that was meant to control air pollution. After an appeals court ruled in the council's favor, Chevron appealed, arguing that the court should defer to the EPA's definition of a source of air pollution. The Supreme Court upheld the EPA's interpretation, setting out a two-part analysis for when courts must defer to an individual agency's regulatory interpretation of statutes.

First, a court must determine whether Congress directly and unambiguously spoke to the precise question at issue, in which case the court and the agency must defer to the text of the statute, explained Hal Coxson, an attorney with Ogletree Deakins in Washington, D.C.

Second, if the court decides that Congress was silent or has not spoken unambiguously to the precise issue in question, the court should defer to the agency's interpretation of the law as long as it's a permissible construction of the statute. In that case, the court must analyze the agency's regulation by determining whether it is rational or whether it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. If it is rational, the court must defer to the agency's interpretation.

Standard Opposed

"Judge Gorsuch's concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), made clear that he would welcome the demise of Chevron," Udell said.

After Hugo Gutierrez-Brizuela had entered the country illegally more than once, he applied for adjustment of his immigration status for permanent residence. Although there is a 10-year waiting period for those who have entered the country illegally more than once, the 10th Circuit ruled in 2005 that the attorney general has the discretion to waive the waiting period. But the Board of Immigration Appeals denied Gutierrez-Brizuela's application, after the board decided in 2007 in a separate case that the attorney general does not have this discretion. When the agency later sought to apply its new administrative ruling to someone else in a separate case, the 10th Circuit decided in 2011 that Chevron required the court to defer to the agency's 2007 decision and overrule the appeals court's own statutory interpretation.

Everyone accepts that after the court reached this decision, all petitioners from 2011 on had to satisfy the 10-year waiting period and may not seek discretionary relief. And there was agreement that those whose denials fell before the board's 2007 announcement could petition for the attorney general's discretion. But what about petitioners like Gutierrez-Brizuela who applied for discretionary relief after the board's 2007 announcement but before the court's 2011 reversal? The board sought to apply its decision to Gutierrez-Brizuela, but the 10th Circuit disagreed.

Chevron "may mean that agencies exercising delegated legislative power can effectively overrule judicial precedents. But that does not mean their decisions must or should presumptively apply retroactively to conduct completed before they take legal effect," the 10th Circuit stated.

"Although Judge Gorsuch authored the majority opinion in that case, he felt so strongly that he wrote an additional concurrence—very unusual—which constitutes a thorough, point-by-point attack on Chevron," Udell said.

In the concurrence, he stated that Chevron deference "permit[s] 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." He also wrote, "Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions."

"The separation of powers is something Judge Gorsuch feels deeply about and he sees Chevron deference as a 'judge-made doctrine for the abdication of the judicial duty,' " Udell said.

Chevron already is unpopular among many Republicans. The House of Representatives on Jan. 11 passed a bill, H.R. 5, that would end courts' Chevron deference. While the Senate isn't likely to pass the bill now, the legislation signals "the determination by House Republicans to make fundamental changes to the law so that when the White House turns again to a Democrat, as it surely will at some point, the law will have structural protections in place making it much more difficult" for a Democratic president to implement his or her agenda successfully, said Michael Lotito, an attorney with Littler in San Francisco and co-chair of its government affairs branch, the Workplace Policy Institute.

Other Justices' Stances

Justice Clarence Thomas "would love to see Chevron overturned," Udell said. She noted that in one concurrence (Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015)) Thomas wrote, "Chevron deference raises serious separation-of-power questions." 

Udell said that Chief Justice John Roberts Jr., Justice Anthony Kennedy and Justice Samuel Alito Jr. "would like to see it at least narrowed. If Judge Gorsuch could persuade those three to go a step further and embrace his views, it would result in enough votes to abandon Chevron entirely: 5-4."

She added, "If those justices are not prepared to go quite that far, that day would have to wait. In that event, we could expect that in those cases in which the majority of the court deferred to the agency under Chevron, Judge Gorsuch would write or join a dissent based on his view that Chevron violates the separation of powers. Dissents can be persuasive in changing times. Perhaps, over time, Chevron's influence would ebb. President Trump may well appoint at least one more justice after Judge Gorsuch, given the age of some of the current justices, which makes the demise of Chevron that much more likely." 

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