In a recent essay published in the Stanford Law Review Online, a classmate and I took a detailed look at Judge Gorsuch’s administrative-law jurisprudence, including his view of deference to administrative agencies. As Senate Democrats move to filibuster the nominee, I’m disappointed by the media’s coverage of Gorsuch and his views on Chevron deference — so much so that I’m neglecting my law-school exams to write this.
Judge Gorsuch is not a radical on Chevron deference — in part because no one really likes it anymore. Still, countless commentators have suggested that Gorsuch is more radical than Justice Scalia on the issue, tacitly (or openly) assuming the Chevron doctrine has a clear political valence. But the notion that the Chevron debate splits along a “partisan divide” is, frankly, too facile an explanation to merit serious discussion. Other commentators — not to mention recent history — have demonstrated that executive deference is a two-edged sword when the person in charge of the agency changes.
The contention that Judge Gorsuch is a departure from Justice Scalia, who initially championed Chevron, is a serious one. But as my classmate and I argue, the difference between Justice Scalia and Judge Gorsuch is not so great because Scalia himself may have been shifting ground. Just last November, Justice Alito spoke at the Federalist Society’s National Lawyers Convention and stated that Justice Scalia was “rethinking the whole question of Chevron deference.” While we can’t know for sure, Justice Scalia’s administrative-law jurisprudence supports that inference. For instance, he insisted on restricting Chevron’s application in the first instance and excoriated decisions like Brand X and Auer, which seem like natural outgrowths of the Chevron regime.
What was true of Justice Scalia is true of other justices as well. If Chevron is a sort of default rule, judges of all stripes are clamoring to chip away at the edges of the default position. For example, Justice Stevens and Justice Breyer wrote separately in Negusie v. Holder, to state that agencies should not be entitled to deference on “pure questions of statutory interpretation.” But that view sounds a lot like the one that prevailed in the world before Chevron. And any law student will tell you the hornbook summation of Chevron’s doctrine is that agencies are entitled to deference when implementing ambiguous statutes — which amounts to a question about what a statute means. An honest observer would be hard-pressed not to admit that Chevron has few champions today — and may even be a giant collapsing under its own weight.
Don’t take my word for it. Just last month, the sitting justices themselves raised serious questions about the doctrine during oral argument in Esquivel-Quintana v. Sessions. That case asks whether an individual’s conviction for statutory rape constitutes the “aggravated felony” of “sexual abuse of a minor” for purposes of removal under the Immigration and Nationality Act. Although the Court could easily answer that question without venturing into the quagmire of administrative law, the justices went out of their way to express views on Chevron’s application to statutes with criminal applications. In fact, they seemed to be teasing out one another’s views in anticipation of a new colleague . . .
Justice Alito initially endorsed the view espoused by Judge Sutton in his concurrence to the Sixth Circuit’s opinion. That Chevron cannot apply to statutes with both civil and criminal applications, said Justice Alito, is “an appealing argument when you say it fast.” But he ultimately concluded there may not be “anything odd about having the same phrase interpreted using a different methodology in a civil case and in a criminal case.” Justice Kagan, on the other hand, assumed that differing constructions of the same statute in the civil and criminal contexts creates a conflict that must be averted. Accordingly, she suggested the ambiguity thresholds might differ for Chevron and the rule of lenity, which directs that ambiguous criminal statutes be construed in favor of a defendant. The two doctrines could be triggered at different points in the textual analysis and, therefore, need not conflict. And when a statute is ambiguous under Chevron, but not lenity, “the Court gets to decide.” Chief Justice Roberts thought this didn’t solve the problem. He argued that, regardless of whether substantive canons — such as lenity — apply before or after Chevron’s first step, lenity and Chevron “each point in the opposite direction based on the same predicate.”
Justice Breyer and Justice Kennedy then offered their own opinions on the broader question of Chevron deference, untethered to the instant issue of the doctrine’s application to hybrid civil-criminal statutes. Most significantly, Justice Breyer delivered what he styled a mini “lecture” on administrative law, suggesting that Chevron is only a rule of thumb for application to particular kinds of statutes. Chevron, he said, “is not a rule of tax law.” So, the type of deference an agency deserves “will vary depending on the statute.” Justice Kennedy likewise favored some limitation on administrative deference. But rather than asking what sort of deference “a reasonable legislature” intended to confer upon an agency, Justice Kennedy suggested that Chevron might apply only where “an agency . . . has special expertise.”
Only Justice Sotomayor appeared resolutely concerned about the possibility of limiting Chevron. She worried that a lenity-trumps-Chevron rule could swallow administrative deference completely since so many statutes have both civil and criminal applications. In fact, “[a]lmost all of them do,” she argued. “So where would Chevron be then?”
Indeed, it’s a fascinating question — where Chevron will be, say, five years from now. But asking Judge Gorsuch where he stands will only provide a partial answer. A sober assessment recognizes that the state of affairs looks more like a Yogi Berra one-liner: There are so many radicals these days; no one is extreme anymore.