The curveball in the Gorsuch nomination

Trump: 'Go nuclear' on Supreme Court pick
Trump: 'Go nuclear' on Supreme Court pick

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Story highlights

  • Jeffrey Pojanowski: Gorsuch's approach on administrative law would limit Trump's power
  • In getting his way on nomination, Trump may be less likely to get way on the law, he says

Jeffrey Pojanowski, professor of law at the University of Notre Dame Law School, teaches and writes in the areas of administrative law, jurisprudence, legal interpretation and torts. The opinions expressed in this commentary are his.

(CNN)Much about Judge Neil Gorsuch's nomination and confirmation process will be familiar. The American public will get the standard pitches about constitutional interpretation, civil rights, federalism, precedent and the rule of law. But we live in interesting times, and Gorsuch's nomination comes with a curveball -- namely his skepticism of the longstanding doctrine that courts should defer to the executive branch's interpretations of law.

Jeffrey Pojanowski
Gorsuch has favored an approach to administrative law that would limit President Donald Trump's discretion and power.
Let me explain. Officials who answer to the president, such as the attorney general or the administrator of the Environmental Protection Agency, have to interpret law all the time. When agencies issue regulations or decide whether parties have violated federal regulatory law, they often must decide what federal statutes have to say on the matter. And when parties disagree with these agencies' decisions, they can challenge them in court.
    A judicial doctrine known as Chevron deference, named after a 1984 Supreme Court case on the matter, governs how strictly a court should review an agency's interpretation of law.
    Under the Chevron doctrine, if the court finds the statute clear, the judicial interpretation governs regardless of the agency's opinion.
    Crucially, however, if the court finds the statute unclear, it must defer to the agency's interpretation so long as it as a reasonable one -- even if that reading is not what the court would have adopted on its own. The standard justification for Chevron deference is that unclear legal cases turn on policy choices. Therefore, administrative agencies with political accountability and technical expertise should make those choices, not unelected federal judges.
    As a practical matter, Chevron deference can shift substantial power to the executive branch, and therefore the president. The federal statutes that agencies administer are often not crystal clear, and Chevron dictates that close calls go to the government. This includes changes to previous administrations' interpretations of those statutes. So long as the new interpretation is also reasonable, Chevron teaches that the agency can depart from past practice.
    Unlike lots of other areas of the law, debate over Chevron deference is not a neatly partisan affair. In fact, legal conservatives differ over whether it is a good idea.
    Enter Gorsuch: In 2016, he took the unusual step of issuing a separate concurring opinion criticizing Chevron. (As an intermediate appellate judge, he could do little more than complain about the test the Supreme Court makes him apply.)
    Chevron deference, he argued, requires courts to depart from their judicial duty to say what they believe the law is. This, Gorsuch contended, confounds the separation of powers and allows "politicized decisionmakers to decide cases and controversies about the meaning of existing laws."
    Of particular interest these days is the fact that Gorsuch happened to offer this criticism in a case where the government sought deference to its decision to exclude an immigrant from the United States. There, the government sought to apply retroactively its new rule that an immigrant who entered the country unlawfully had to wait 10 years before he or she could apply for lawful status.
    The government's interpretation disagreed with judicial precedent holding that the law allowed re-entry sooner. Gorsuch bristled at the notion of government lawyers brushing aside judicial decisions, and further held that the government could not reach back and apply its new restrictive rule to conduct that occurred before that rule became final.
    Gorsuch does not speak for all conservative legal thinkers, but he represents a camp that pushes back against the notion that hard questions of legal interpretation boil down to policy preferences -- and thus should be decided by executive agencies rather than judges. Right or wrong, such a rejection of Chevron could tilt the balance of power from the executive branch to the judiciary.
    Think of Chief Justice John Roberts' anti-Chevron holding in King v. Burwell that the Supreme Court -- and not the IRS commissioner -- decides whether federal exchanges operating in the states were valid under the Affordable Care Act. The Roberts court upheld the exchanges, but not because the interpretive tie went to the government base runner. Without Chevron, the judicial umpire decides.
    Imagine also Trump administration decisions to adopt aggressively restrictive interpretations of the immigration laws or to reverse Obama-era readings of environmental or labor statutes. In a world without Chevron, the new administration offering a plausible interpretation cannot win if the courts think the best reading of the legislation goes the other way.
    All this adds a twist to Gorsuch's nomination. In picking him, Trump chose the short-lister most likely to bolster the judiciary's claims over the executive branch in the power to say what the nation's regulatory law is. Presently, Justice Clarence Thomas is the only active member of the Supreme Court to call for a reversal of Chevron, although the chief justice and Justices Samuel Alito and Stephen Breyer at times have shown some interest in domesticating the doctrine. It would go too far to say that Gorsuch would shift the tide on judicial deference, but he would add another thoughtful voice to the skeptical chorus.
    In getting his way on the nomination, Trump may be less likely to get his way on the law. At a time when people across the ideological spectrum have concerns about the stability and rule of law, Gorsuch's jurisprudence may come as a welcome relief.