Against all odds, the nomination of Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals to the U.S. Supreme Court has made a mainstream issue of whether federal judges should defer to executive-branch agencies in interpreting laws and regulations the agencies enforce. As you’ve doubtless heard if you’re paying attention to Gorsuch’s Senate confirmation hearings, the judge revealed last summer, in a concurrence in a complicated immigration case, his constitutional concerns about 1984’s Chevron v. Natural Resources Defense Council, the Supreme Court decision that directs judges to defer to agencies’ interpretation of the laws they administer.
On Tuesday, several U.S. senators (from both parties) asked Judge Gorsuch to defend his argument that Chevron deference seems to clash with separation-of-powers doctrine. Gorsuch told the Senate he’s not committed to undoing Chevron.
But Judge Kent Jordan of the 3rd Circuit certainly is. Even as Judge Gorsuch reassured the Senate about his respect for Supreme Court precedent, Judge Jordan argued in a concurrence in an employment case that Chevron and Auer v. Robbins (a 1997 case requiring judicial deference to agency regulations) have badly eroded separation-of-powers principles. Unlike Gorsuch, Judge Jordan didn’t hold back. Not at all.
“Chevron and Auer and their like are, with all respect, contrary to the roles assigned to the separate branches of government,” the judge wrote in the opening paragraph of his concurrence. “They embed perverse incentives in the operations of government; they spread the spores of the ever-expanding administrative state; they require us at times to lay aside fairness and our own best judgment and instead bow to the nation’s most powerful litigant, the government, for no reason other than that it is the government. The problems they create are serious and ought to be fixed.”
And in case any reader missed the bit about the “spores of the ever-expanding administrative state” in that opening salvo, the judge repeated his fears about the creep of “vast and largely unaccountable” administrative power later in the concurrence. “Deference to agencies strengthens the executive branch not only in a particular dispute under judicial review; it tends to the permanent expansion of the administrative state,” he wrote. “When the power to create and interpret and enforce the law is vested in a single branch of government, the risk of arbitrary conduct is high and individual liberty is in jeopardy.”
Deference to the administrative state, Judge Jordan said, withers the other two branches of government – not just the judiciary, but Congress as well. The judge approvingly quoted Virginia Republican Bob Goodlatte, chairman of the House Judiciary Committee, on the temptation presented to lawmakers who know judges will acquiesce to agency decision-making. Chevron deference, Goodlatte said, “tempts Congress to let the hardest work of legislating bleed out of Congress and into the executive branch, since Congress knows judges will defer to agency interpretations of ambiguities and gaps in statutes Congress did not truly finish.”
The judge cited a run of recent Supreme Court decisions in which conservative Supreme Court justices have fretted about expansion of executive-branch power at the expense of the judiciary. Justices Clarence Thomas, Samuel Alito and Antonin Scalia have, in particular, called for a reconsideration of Auer deference to agencies’ interpretation of their own regulations.
The Supreme Court was slated to review Auer deference this term in a Virginia school board’s appeal of a 4th Circuit ruling that allowed a transgender high school student who identifies as a boy to use the boys’ bathroom at school. But earlier this month, after the Trump administration withdrew the Education Department policy guidance at the heart of the 4th Circuit decision, the justices sent the case back to the appeals court to decide whether federal anti-discrimination law protects the student, Gavin Grimm.
In the case that prompted Judge Jordan’s vehement concurrence Tuesday, the 3rd Circuit revived a claim by Joseph Egan, a former employee of the Delaware River Port Authority, that he faced retaliation for taking time off under the Family and Medical Leave Act when his migraines kicked up. A jury found the authority was not liable, but the appeals court said the trial judge mistakenly required Egan to provide direct evidence of retaliation despite a Labor Department policy that allows plaintiffs to offer a mix of direct and circumstantial evidence. (Judge Patty Shwartz wrote the panel’s opinion, which Judge Jordan and Chief Judge Brooks Smith both joined.)
Judge Jordan’s concurrence said the Egan case perfectly illustrates the problem of deference, in which “federal courts are now routinely told, in the name of Chevron, to bow down and obey the executive branch.” In the 3rd Circuit, he said, established precedent sets a standard of proof for retaliation claims. But the court has to ignore its own standard for a Family and Medical Leave Act retaliation claim because it must defer to the Labor Department.
“Based on the judgment of someone inside the department tasked with enforcing the FMLA, and despite the district court’s effort to say what the law is, employers will now face a lower threshold of liability than they would have under the default causation standard,” he wrote. “So much for the job of the judicial branch.”