Justice Gorsuch's Newest Rant on Chevron and the Administrative State (11/7/22; 11/8/22)

Justice Gorsuch continues his ranting against Chevron and the administrative state in a dissent today from a denial of a petition for certiorari.  Buffington v. McDonough, 143 S. Ct. 14 (Sup. Ct. Case No. 21–972 11/7/22), SC here and GS here; Supreme Court docket entries here.  

As with his concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016), GS here, he rants alone, unable to attract any other Justices’ concurrence in his concurrence.  I will write more later today or tomorrow on his rantings; in the meantime, readers can read the rant (only 16 pages) without being distracted by my counter-rant.  I will say that my text search indicates that he does not repeat his Brizuela concurring rhetoric about elephant in the room. At least that is good, but he does have some other rhetorical sound bites that may play well with persons who hate the administrative state as much as he does.

When I write more, I will post it to this blog entry and note the date and time I added it.

Added 11/8/22 ___ pm 2:15 pm:

1. Justice Gorsuch makes clear that he does not like Chevron “deference” because, he believes, it allocates interpretive power to agencies that should belong to the courts. I think readers interested in this area should respectfully consider his arguments (sort of like Skidmore respect for arguments in non-majority opinions.). I do not deal in detail with the arguments because they are addressed in my article,  The Report of the Death of the Interpretive Regulation Is an Exaggeration  (SSRN December 14, 2021), here. (Referred to in this blog entry as Report of the Death.)

2. I disagree with two major points in Justice Gorsuch’s argument:—

 (i) courts did not defer to agency interpretations before Chevron was elaborated after the decision in 1984 but instead only gave respectful consideration to agency interpretations a la some Skidmore-type respect to determine the best interpretation);  and

(ii) the APA § 706 allocated to the courts all interpretive power over ambiguous statutory text just as the Constitution requires from the sound bite in Marbury v. Madison.

3. Justice Gorsuch cherry-picks the history (cases and scholarly comment) to support the arguments without acknowledging contra-history. I think the history fairly read, laid out in many authorities (case and scholarly) is that there has been some form of deference to reasonable agency interpretations before and after the APA was enacted in 1946, despite Marbury and despite § 706. For example, everyone knew about Madison and APA § 706, and most clearly felt that deference practice was consistent with them. See e.g., Report of the Death, p. 71, text and footnote n. 284. Indeed, Chevron-- which Justice Gorsuch views as the fulcrum that moved the courts off track--did not change the concept of deference to reasonable agency interpretations, except that it regularized a process for determining when a court may defer to reasonable agency interpretations. Id., pp. 100-101. And specifically, I address Justice Gorsuch’s claims identified in paragraph 2 above at pp. 83-86.

4. Justice Gorsuch claims (Slip Op. 15; 143 S.C. 22) that:

            Unsurprisingly given all this [his reading of the past], the aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it. The Federal Circuit’s decision at issue here is thus something of an outlier.

Justice Gorsuch is right about Chevron deference falling into desuetude. The Supreme Court rarely invoked it in recent years. The Courts of Appeals rarely invoke Chevron in a way that is clearly outcome determinative to approve an agency interpretation that is not the best interpretation of the statute under the normal tools of construction, including Skidmore respect (not deference). See e.g.,  Is Chevron on Life Support; Does It Matter? (4/2/22; 4/3/22), here; Chevron Deference: Much Ado About Not Much (8/15/21), here. Indeed, I have argued that given judges' claimed abilities as the best interpreters of statutes, there would be a rare case when a court could not determine the best interpretation of the statute and apply that interpretation rather than a lesser "not best" agency interpretation through the various escape hatches in Chevron. See e.g., What is the Best Interpretation for Purposes of Determining a Not Best Interpretation for Chevron Deference? (10/21/22; 10/25/22), here. If that is right, then Chevron’s domain is to default to the agency interpretation when the court is in interpretive legal equipoise, but when in equipoise the court is not deferring to a less best agency interpretation. Id. Stated otherwise, the best interpretation controls because it is the best interpretation, not because a court is deferring to an agency interpretation that is the best interpretation.

5. Justice Gorsuch invokes or at least alludes (Slip Op. 10) to “ancient doctrines of lenity and contra proferentem.” OK, all readers of this blog and the companion Federal Tax Crimes Blog should get the doctrine of lenity applying to interpretations of criminal statutes. But, contra proferentum was new to me (or if I had heard the term previously, I have forgotten), at least in the discussion of deference. The concept (rather than the name) is that ambiguous contract terms should be construed against the drafter of the contract. Yes, that is basic contracts law that we learn in the first year of law school; courts can trot out the concept (if not the term) to justify what they want to do to resolve a contract. That concept is analogous to Chevron’s concept of ambiguity and lenity’s concept of ambiguity, which is also trotted out to achieve desired results.

6. Justice Gorsuch could not let the occasion pass without citing his famous (or infamous, depending upon perspective) concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016), GS here. Fortunately, as noted above, he spares us his elephant in the room opening line. But, as also noted, he sprinkles some sound bites and still manages to cite Gutierrez-Brizuela.  Justice Gorsuch thus says about Chevron (Slip Op. 11): “A rule like that is neither a traditional nor a reasonable way to read laws. It is a fiction through and through—and ‘one that requires a pretty hefty suspension of disbelief at that.’ Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1153 (CA10 2016) (Gorsuch, J., concurring).”

7. I close with just a series of related questions. Why did no other Justice concur in Justice Gorsuch’s concurring opinion? Specifically, where are the voices of somewhat similar thinking (or professing) Justices-- Alito, Barrett, Kavanaugh, Roberts, and Thomas? Do they have some issue with the extravagant, and in my view, erroneous claims Justice Gorsuch makes? What (or who) is the intended target for those claims, perhaps a future Trump administration that may reward him with a Chief Justice position if it opens up? 

Consider that Justice Gorsuch's claims may have contributed to achieving his initial nomination to the Supreme Court. See Jeremy W. Peters, Trump’s New Judicial Litmus Test: ‘Shrinking the Administrative State’ (NYT 3/26/18) (noting administrative state angst with anti-Chevron as a litmus test for Trump’s judicial, particularly Supreme Court Justice); and Peter J. Henning, Gorsuch Nomination Puts Spotlight on Agency Powers (NYT Dealbook 2/6/17) (citing Justice Gorsuch's rant in his concurring opinion in Gutierrez-Brizuela (including his sound bite about elephant in the room).

Added 11/9/22 10:00 am

8. Jonathan Adler posted this crisp blurb on Gorsuch's Buffington dissent (Supreme Court Turns Down Opportunity to Reconsider Three More Precedents (The Volokh Conspiracy 11/8/22), here):

In Buffington v. McDonough, Justice Gorsuch dissented from the Court's refusal to consider an opportunity to narrow the Chevron doctrine. Whereas in prior writings Gorsuch expressed a desire to overturn Chevron v. NRDC outright, his Buffington dissent trains its focus on the "expansive reconstruction of Chevron" that holds sway in too many lower courts. Wrote Gorsuch: "With the passage of time, the problems with reading too much into Chevron have become widely appreciated. . . . We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law's meaning in the cases that come before the Nation's courts. Someday soon I hope we might." As Josh Blackman notes below, no other justice joined this dissent. I may have more to say about this opinion later.

A colleague made a similar comment to me in an email yesterday, reading Gorsuch’s Buffington dissent as dramatic since he did not “expressly” argue for repeal of Chevron as he has in the past.  Rather, according to this view, Justice Gorsuch argues for a ratcheting back of the expansion of Chevron.

As I read Justice Gorsuch’s Buffington dissent, although he may not have expressly stated the words “overrule Chevron” (or some equivalent expression), he was by no means tolerating pre-expansion Chevron or even praising pre-expansion Chevron (except by faint praise). His dislike of deference to agency interpretations is evident because he claims that the courts must have all interpretive authority. Further, he makes the claim that the unexpanded Chevron was consistent with his view of the history of deference that courts generally interpreted the law giving only Skidmore-like respect for agency interpretation in determining the best interpretation.  That may not be express but it is unmistakable.

9. Justice Gorsuch claims that, although Chevron itself was not a revolution (I agree), the expanded Chevron by post-Chevron spinning was a revolution (I understand his argument but am not persuaded). As I have argued before, Chevron (including post-Chevron spinning) was not a revolution in terms of the concept of deference. Chevron only regularized and brought structure to the determination of when deference should apply. Post-Chevron spinning kept the structure but perhaps, at most, courts appeared too willing to declare an agency interpretation reasonable and thus outcome determinative. Nevertheless, even if Chevron were overruled and any vestigial claims of deference to agency interpretations rejected, I am not sure that outcomes will be materially different. As Judge Jon Newman of the Second Circuit observed about Chevron in an outcome determinative sense (On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021)):

            It is difficult to know how the Supreme Court or other federal courts determine whether an agency’s interpretation of an ambiguous statute is “reasonable.” No weighing process appears to be involved. It would probably be too cynical to suggest that the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening. Clearly there is no one meaning of “reasonable” in the context of Chevron deference. Perhaps this is simply a context where there is a narrow range of acceptable agency interpretations, on either side of the disputed issue, that courts are willing to uphold, but they are ready to assert the power to reject others that, for stated, or more often unstated, reasons, they deem beyond an amorphous notion of “reasonable.”