Bbb-but, Gorsuch? – Above the Law

Justice Neil Gorsuch

Criticizing U.S. Supreme Court Justice Neil Gorsuch can generate some interesting rebukes from, of all places, libertarian Twitter. In some ways, I can understand the libertarian fanfare for Gorsuch. After all, I myself have praised the man for authoring some astoundingly refreshing opinions. The reason so many libertarians support Gorsuch is because, in the past, he has heavily criticized the discretional power given to the [u]nbridled [b]ureaucrats that run our countrys vast administrative state due to the Auer and Chevron doctrines. Before we get into how shockingly fast Gorsuch squashed all hope he would meaningfully challenge the discretion given to the administrative state, we should get into some necessary background regarding the Auer and Chevron doctrines.

The Auer doctrine is named after the 1997 case Auer v. Robbins, which established judicial deference to executive agency interpretation when gaps between federal law and agency regulation exist. Similar to Auer, the Chevron doctrine grants deference to an executive agencys reasonable interpretation of a federal statute. Taken together, both doctrines establish a great deal of flexibility for executive agencies without judicial review, and as I hope you can imagine, these doctrines are heavily criticized by libertarian voices. So, it was to many libertarians joy when Gorsuch made his desire to overrule Auer abundantly clear. Moreover, as Reasons Jacob Sullum has pointed out, this position has made Gorsuch a perceived threat to progressive economic, environmental, anti-discrimination, and public safety regulations. Given his further opposition to Chevron, Gorsuchs ascension to the Court was portrayed at the time as a possible monumental shift to how our government is shaped.

To be clear, as I point out above, in some cases, Gorsuch has acted in accordance with these expectations. He unambiguously argued for overturning Auer, for example. In more recent cases however, he has bristled at the very idea of judicial review over unelected, unbridled bureaucrats. In fact, Gorsuch has recently argued that commissioners of executive agencies should be given carte blanche authority that is never subject to judicial review.

The case where Gorsuch found himself on the side of deference to the unelected bureaucrat was the recent one involving the citizenship question on the national census. As discussed by Elie Mystal here at Above the Law at the time, in the census case the evidence unambiguously demonstrated not only that the head of the executive agency (Wilbur Ross), lied about why a particular regulation was being implemented, the lie was on behalf of an expressly racist reason. Despite this abundantly clear evidence, Gorsuch ultimately disagreed with Chief Justice John Roberts that when evidence does not match agency explanation, judicial review requires something better than the explanation offered for the action.

Continuing down a path of seemingly shocking reversal from prior principles, in a more recent case, Gorsuch criticized the practice of nationwide injunctions against executive regulations. Ill let Harvard Law Professor Benjamin Spencer put this criticism into context: In an era when the power of the executive is being expanded in varied and disconcerting ways, this effort to denigrate and eliminate the nationwide injunction should be seen for what it is: an attempt by those who favor a more powerful executive to get the federal courts out of the way.

The amount of deference and power Gorsuch was willing to extend to the executive in just these two cases alone is not only unprecedented, perhaps more unfortunately, by any logical sense it should destroy the image of Gorsuch as the great weapon against an ever-increasing and all-powerful administrative state. Moreover, it makes any future criticism or opinion by Gorsuch regarding Auer or Chevron entirely suspect.

With the census case certainly, there was a real, transformative, and a once in a generational chance to reel in the discretion given to unelected bureaucrats, even if only in specific cases where they are caught lying and therefore judicial review becomes most necessary. Responding to that moment, where the evidence does not match the agency explanations, by declaring the agencies reasoning and action are beyond the scope of judicial review rightfully undercuts any attempt by Gorsuch in the future to criticize, say, the Environmental Protection Agency under a president Bernie Sanders.

Of course, as Sullum also rightfully points out, during Gorsuchs time on the Tenth Circuit, his critique of the administrative state was applied in cases that involved issues and defendants from across the ideological spectrum. Therefore, although I can see why some thought Gorsuch would be their champion who would fight the administrative state, it is simply undeniable that when given the chance to do just that, he has repeatedly refused.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free toemail himor follow him onTwitterto discuss his column.

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Bbb-but, Gorsuch? - Above the Law

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