US presidency: The conundrum of Justice Gorsuch’s Supreme Court appointment

Michael D Goldhaber, IBA US Correspondent

After his first 100 days in office, President Trump understands he can’t simply govern by executive order. Experts expect deregulation to be the Administration’s next major focus, but Justice Gorsuch’s appointment to the Supreme Court raises intriguing questions.

Donald Trump’s executive orders have commanded more attention than action. Some, like the travel ban, are foundering in court. Others, like the decree to halt the Clean Power Plan, are merely a declaration of intent to deregulate. As his legislative programme stalls, Trump (like Obama) may be expected to rely on rulemaking all the more.

The puzzle, then, is why, in Neil Gorsuch, he has nominated to the Supreme Court a man whose track record suggests he might be inclined to second-guess the President’s agencies.

White House Chief Strategist Steve Bannon explained Trump’s agenda with astonishing frankness at the Conservative Political Action Conference: ‘If you look at these cabinet appointees, they were selected for a reason and that is deconstruction [of the administrative state].’ Sure enough, Environmental Protection Agency (EPA) Administrator Scott Pruitt challenged EPA rules in 14 lawsuits as a state regulator. Health and Human Services Secretary Tom Price led the charge to repeal Obamacare over 50 times in the House of Representatives. Shortly after Congress refused to pass Trumpcare, Price tweeted: ‘There are 1,442 citations in [Obamacare] where it says “The Secretary shall…” or “The Secretary may…”. [W]e’ll look at every single one.’

In response, experts predict a wave of regulatory lawsuits -- whether by blue states prodding dilatory regulators to act on Obama’s surviving legal mandates, or by liberal advocacy groups challenging Trump’s deregulatory rules as arbitrary or unauthorised. If so, then Trump’s best friend for the next four years may be the ‘Chevron’ doctrine, which gives agencies rather than courts the primacy in interpreting murky United States laws.

However, the nomination of Neil Gorsuch to succeed Antonin Scalia as Associate Justice of the Supreme Court raises interesting questions. Justice Gorsuch is a leading critic of the Chevron doctrine, which dates back to the Reagan era, and wants courts to take back the power of statutory interpretation from agencies. The intriguing nature of the appointment is heightened by the fact that the regulator who established the now-questioned agency power in Chevron v NRDC was Gorsuch’s mother, who torched EPA rules as Reagan’s environmental administrator.

In last year’s Gutierrez-Brizuela v Lynch, Gorsuch sided with an immigrant over the Bureau of Immigration Appeals, and did so on the broadest possible doctrinal grounds. Chevron and its progeny, he complained, ‘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’. Some court watchers think liberals should count their blessings.

Increasing the mystery, House Republicans in January voted for a ‘Regulatory Accountability Act’, which would nullify Chevron, and give courts the upper hand over agencies in discerning Congress’ intent. (The bill is not expected to pass the Senate.)

‘It’s somewhat puzzling in the current climate that [Republicans] continue to push [to overturn Chevron] now that Trump is in office,’ says Kathryn Watts of the University of Washington School of Law. ‘[T]his is Congress trying to take back some of the power they have handed to the executive branch. So why a president would want to sign it if the bill passed both houses I don’t understand.’

Michael Dorf of Cornell Law School puts the problem succinctly: ‘It’s weird that a Republican Congress would be trying to get rid of deference to the executive branch while there’s a Republican president.’ Equally, that Trump has nominated to the Supreme Court a critic of agency power is something of a conundrum.

The US Supreme Court – The Presidents’ people

One explanation, Dorf says, is that the House passed a bill developed under Obama without thinking about it carefully (and Gorsuch was nominated for other reasons). An alternative explanation is that Republicans know justices and doctrines are in place for decades, and believe that the long-run effect of rolling back Chevron would be deregulatory.

‘The Code of Federal Regulations is enormous,’ Dorf notes. ‘To say that none of those are presumptively valid anymore would be a kind of full employment act for administrative lawyers to go find regulations that clients don’t like.’

But, Dorf doesn’t believe the Chevron doctrine is about to vanish. ‘I’m dubious that the Court, even with Gorsuch, would overrule Chevron,’ he says. ‘I don’t count five votes -- although I do think there would be a further weakening.’

Watts agrees, and adds that Chevron is not the only game in town. Whether under new, old or tweaked administrative law doctrines, she says, the courts have lots of ways to act as a check on presidential agencies that interpret legislative texts aggressively. As the White House Chief Strategist, Steve Bannon must be forewarned that you can’t deconstruct the state legally unless judges like your literary deconstruction.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org