Is court deference to federal agencies unconstitutional? 10th Circuit judge thinks so.

August 24, 2016

(Reuters) – The first thing I want to tell you about a concurrence by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals in Gutierrez-Brizuela v. Loretta Lynch is to read it yourself. Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism. If the whole judging thing doesn’t work out for Gorsuch, who is often named as a potential U.S. Supreme Court pick in a Republican administration, he has a real future as a law blogger.

The judge took the opportunity of a complicated immigration case to write about the tension between separation of powers doctrine and the Supreme Court’s 1984 opinion in Chevron v. Natural Resources Defense Council, which directed courts defer to executive-branch agencies in the interpretation of ambiguous statutes. The case involved a foreign national who sought legal residency in the United States after entering the country more than once without the proper authorization. Until 2007, the U.S. Attorney General had the discretion, under precedent in the 10th Circuit, to consider applications by people in that category, despite a provision in federal immigration law that required a 10-year waiting period outside of U.S. borders for those who entered the country illegally on more than one occasion.

In 2007, the Board of Immigration Appeals issued a determination that removed the Attorney General’s discretion, effectively overturning appellate court precedent. The 10th Circuit subsequently held in a 2015 case called De Niz Robles v. Lynch that the board’s new policy was not legally effective until it was reviewed under Chevron and National Cable v. Brand X, a 2005 decision in which the Supreme Court said Chevron requires federal judges to defer to agency interpretations even if the court believes there is a better reading of an ambiguous statute. The 10th Circuit’s De Niz Robles opinion established that executive-branch agencies may not retroactively override the court so the old appellate precedent allowing U.S. Attorney discretion applied to cases preceding the 2007 policy revision.

But what about prospective immigrants who asked the U.S. Attorney to exercise discretion and grant legal residency after the immigration board announced its new policy in 2007 but before the policy was reviewed by the 10th Circuit? In Tuesday’s decision, Judge Gorsuch and his appellate court colleagues Monroe McKay and Robert Bacharach concluded that judges should presume agency rules overturning judicial precedent do not apply until the new agency policy is reviewed by the court.

That would have been an interesting, if rather circumscribed, ruling had that been all Gorsuch wrote. But it wasn’t. The judge added a 22-page concurrence to discuss what he called “the elephant in the room with us today . 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. Maybe the time has come to face the behemoth.”

The founding fathers, Judge Gorsuch wrote, crafted a delicate distribution of power amongst the branches of government in order to safeguard personal rights. “A government of diffused powers, they knew, is a government less capable of invading the liberties of the people,” he wrote. “Yet this deliberate design, this separation of functions aimed to ensure a neutral decision-maker 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.”

Under Judge Gorsuch’s scrutiny, Chevron deference is actually “no less than a judge-made doctrine for the abdication of the judicial duty” – a failure on the part of the courts to play their assigned role in the regime devised by the framers of the Constitution. According to Judge Gorsuch, the result is exactly the sort of due process and equal justice failing illustrated by the Gutierrez-Brizuela case.

The judge picked apart Chevron defenders’ primary argument, which is that when Congress passes an ambiguous law, its intention is to delegate policy choices to the executive branch via agency interpretation of the statute. Judge Gorsuch said it’s folly to attempt to divine Congressional intent from an imprecise statute – and even if Congress actually did mean to leave behind a policy vacuum, courts still have a responsibility to act as a check on the executive branch. Under Chevron and Brand X, he said, “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.”

Chevron deference, according to the judge, “certainly seems to have added prodigious new powers to an already titanic administrative state.”

So what is the solution? Gorsuch said there would be really no problem to solve if Chevron and Brand X fell. “Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes,” he wrote. “The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute. But de novo judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law …. We managed to live with the administrative state before Chevron. We could do it again.”

I’m sure lawyers who’ve worked hard to make policy at executive branch agencies will disagree with Judge Gorsuch’s concurrence, which really is more of an essay than a judicial opinion. But the judge will make you think.

(Reporting by Alison Frankel)

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