A Republic, If You Can Keep It

by Neil Gorsuch

  I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people.

  Gutierrez-Brizuela v. Lynch

  With this piece we move from speeches about the separation of powers to cases showing its impact in the lives of real people. This first case, from my time on the Tenth Circuit, involved an immigrant who was seeking lawful admission to this country but who found himself caught up in complex regulatory red tape just like Mr. De Niz Robles. The government said he should lose even though existing judicial precedent supported him. In the government’s view, the court had to defer to its view of the law’s meaning—and even overrule the judicial precedent on which Mr. Gutierrez-Brizuela had relied. I addressed some of the underlying legal issues in a concurrence.

  At issue were two Supreme Court decisions: Chevron and Brand X. Under the Chevron decision, handed down in the 1980s, if a court finds a statute’s meaning ambiguous it may not resolve the ambiguity using the traditional tools of statutory interpretation that judges have employed for centuries. Instead, the court must defer to an executive agency’s decision about the law’s meaning. A court must do so even when the agency’s decision is influenced by politics, and even if the agency later changes its position in response to a new election or other political pressure. Brand X built on Chevron and announced that a court is now also obliged to allow an agency to use its Chevron powers to overrule a preexisting judicial precedent. In this excerpt, I raise some questions about these doctrines and their consistency with the traditional judicial role, the rule of law, and fair notice to individuals like Mr. Gutierrez-Brizuela and Mr. De Niz Robles.

  Some of the issues discussed here eventually found their way to the Supreme Court during my second full term, in Kisor v. Wilkie (2019).

  There’s an elephant in the room with us today. In other cases and opinions we have studiously attempted to work our way around it and even left it unremarked. But the fact is 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.

  In enlightenment theory and hard-won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decisionmakers was no accident. To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.

  Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment—and raising along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and life-tenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.

  Founders meet Brand X. Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, the framers sought to ensure that judicial judgments “may not lawfully be revised, overturned or refused faith and credit by” the elected branches of government. Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker 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. By Brand X’s own telling, this means a judicial declaration of the law’s meaning in a case or controversy before it is not “authoritative,” but is instead subject to revision by a politically accountable branch of government.

  Of course, Brand X asserts that its rule about judicial deference to executive revisions follows logically “from Chevron itself.” And that assessment seems fair enough as far as it goes. If you accept Chevron’s claim that legislative ambiguity represents a license to executive agencies to render authoritative judgments about what a statute means, Brand X’s rule requiring courts to overturn their own contrary judgments does seem to follow pretty naturally.

  But acknowledging this much only brings the colossus now fully into view. In the Administrative Procedure Act, Congress vested the courts with the power to “interpret…statutory provisions” and overturn agency action inconsistent with those interpretations. Congress assigned the courts much the same job in the immigration field where we happen to find ourselves today. And there’s good reason to think that legislative assignments like these are often constitutionally compelled. After all, the question whether Congress has or hasn’t vested a private legal right in an individual “is, in its nature, judicial, and must be tried by the judicial authority.” Yet, rather than completing the task expressly assigned to us, rather than “interpret[ing]…statutory provisions,” declaring what the law is, and overturning inconsistent agency action, Chevron tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. Judges decide whether the statute is “ambiguous,” and if it is, they decide whether the agency’s view is “reasonable.” But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.

  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. Under Chevron the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. Instead, they are charged with an awareness of Chevron; required to guess whether the statute will be declared “ambiguous” (courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed “reasonable.” Who can even attempt all that, at least withou
t an army of lawyers and lobbyists? And, of course, that’s not the end of it.

  Even if the people somehow manage to make it through this far unscathed, they must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail. Neither, too, will agencies always deign to announce their views in advance; often enough they seek to impose their “reasonable” new interpretations only retroactively in administrative adjudications. Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.

  Some claim to see a way out of our apparent predicament. They suggest that Chevron isn’t so much about permitting agencies to assume the judicial function of interpreting the law as it is about permitting agencies to make the law, to effect their own preferences about optimal public policy when a statute is ambiguous. On this account, Chevron’s rule of deference isn’t about trying to make judges out of agencies or letting them usurp the judicial function. Rather, it’s about letting agencies fill legislative voids. When Congress passes ambiguous legislation, Chevron means we should read that as signaling a legislative “intention” to “delegate” to the executive the job of making any reasonable “legislative” policy choices it thinks wise. And, to be sure, Chevron itself espouses just this view.

  But however that may be, none of it rescues us from our riddle. For whatever the agency may be doing under Chevron, 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. A duty expressly assigned to them by the Administrative Procedure Act and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. Those problems remain uncured by this line of reply.

  Maybe as troubling, this line of reply invites a nest of questions even taken on its own terms. Chevron says that we should infer from any statutory ambiguity Congress’s “intent” to “delegate” its “legislative authority” to the executive to make “reasonable” policy choices. But where exactly has Congress expressed this intent? Trying to infer the intentions of an institution composed of 535 members is a notoriously doubtful business under the best of circumstances. And these are not exactly the best of circumstances. Chevron suggests we should infer an intent to delegate not because Congress has anywhere expressed any such wish, not because anyone anywhere in any legislative history even hinted at that possibility, but because the legislation in question is silent (ambiguous) on the subject. Usually we’re told that “an agency literally has no power to act…unless and until Congress confers power upon it.” Yet Chevron seems to stand this ancient and venerable principle nearly on its head.

  Maybe worse still, Chevron’s inference about hidden congressional intentions seems belied by the intentions Congress has made textually manifest. After all and again, in the Administrative Procedure Act Congress expressly vested the courts with the responsibility to “interpret…statutory provisions” and overturn agency action inconsistent with those interpretations. Meanwhile not a word can be found here about delegating legislative authority to agencies. On this record, how can anyone fairly say that Congress “intended” for courts to abdicate their statutory duty under the Administrative Procedure Act and instead “intended” to delegate away its legislative power to executive agencies? The fact is, Chevron’s claim about legislative intentions is no more than a fiction—and one that requires a pretty hefty suspension of disbelief at that.

  Even supposing, too, that we could overlook this problem—even supposing we somehow had something resembling an authentic congressional delegation of legislative authority—you still might wonder: can Congress really delegate its legislative authority—its power to write new rules of general applicability—to executive agencies? The Supreme Court has long recognized that under the Constitution “Congress cannot delegate legislative power to the president” and that this “principle [is] universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” Yet on this account of Chevron we’re examining, its whole point and purpose seems to be exactly that—to delegate legislative power to the executive branch.

  Of course, in relatively recent times the Court has relaxed its approach to claims of unlawful legislative delegation. It has suggested (at least in the civil arena) that Congress may allow the executive to make new rules of general applicability that look a great deal like legislation, so long as the controlling legislation contains an “intelligible principle” that “clearly delineates the general policy” the agency is to apply and “the boundaries of [its] delegated authority.” This means Congress must at least “provide substantial guidance on setting…standards that affect the entire national economy.” Some thoughtful judges and scholars have questioned whether standards like these serve as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential.

  But even taking the forgiving intelligible principle test as a given, it’s no small question whether Chevron can clear it. For if an agency can enact a new rule of general applicability affecting huge swaths of the national economy one day and reverse itself the next (and that is exactly what Chevron permits), you might be forgiven for asking: where’s the “substantial guidance” in that? And if an agency can interpret the scope of its statutory jurisdiction one way one day and reverse itself the next, you might well wonder: where are the promised “clearly delineated boundaries” of agency authority? The Supreme Court once unanimously declared that a statute affording the executive the power to write an industrial code of competition for the poultry industry violated the separation of powers. And if that’s the case, you might ask how it is that Chevron—a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken—can evade the chopping block.

  Even under the most relaxed or functionalist view of our separated powers some concern has to arise, too, when so much power is concentrated in the hands of a single branch of government. After all, Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state—and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today and in De Niz Robles [a case discussed on this page]. It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design and, as Justice Felix Frankfurter once observed, �
�[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions” imposed by the Constitution.

  What I suspect about Chevron’s compatibility with the separation of powers finds confirmation in what I know. The Supreme Court has expressly instructed us not to apply Chevron deference when an agency seeks to interpret a criminal statute. Why? Because, we are seemingly told, doing so would violate the Constitution by forcing the judiciary to abdicate the job of saying what the law is and preventing courts from exercising independent judgment in the interpretation of statutes. An admirable colleague, Judge Jeffrey Sutton, has noted that the same rationale would appear to preclude affording Chevron deference to agency interpretations of statutes that bear both civil and criminal applications. A category that covers a great many (most?) federal statutes today. And try as I might, I have a hard time identifying a principled reason why the same rationale doesn’t also apply to statutes with purely civil application. After all, the Administrative Procedure Act doesn’t distinguish between purely civil and other kinds of statutes when describing the interpretive duties of courts. Neither did the founders reserve their concerns about political decisionmakers deciding the meaning of existing law to criminal cases; Article III doesn’t say judges should say what the law is or decide whether legal rights have or haven’t vested and been violated only when a crime is alleged. And certainly Marbury v. Madison did not speak so meekly: it affirmed the judiciary’s duty to say what the law is in a case that involved the interpretation of, yes, a civil statute affecting individual rights.