Jonathan H. Adler is the inaugural Johan Verheij memorial professor of law at Case Western Reserve University School of Law. He is editor of “Business and the Roberts Court.”
Judge Neil Gorsuch shares many qualities with the justice he would replace. Like the late justice Antonin Scalia, Gorsuch is widely respected by his peers for his writing, his intellect, his charm and his wit. Gorsuch has also expressed support for a judicial philosophy much like Scalia’s.
Gorsuch shares the late justice’s commitment to statutory text and the original public meaning of the Constitution. In a recent speech at Case Western Reserve University School of Law, Gorsuch embraced Scalia’s view that “judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”
This commonality of thought can be seen in many areas of the law. Like Scalia, Gorsuch has expressed concerns about the “growing number of federal crimes” and opacity of regulations, stressing the importance of clarity in the law, lest otherwise law-abiding Americans find themselves crosswise with the “paper blizzard” of legal requirements.
Gorsuch is not a carbon copy of Scalia, however. Perhaps the greatest area of difference between Gorsuch and Scalia concerns administrative law, in particular the relationship between the judiciary and federal agencies. While esoteric to some, these differences are of profound importance given the all-encompassing reach of today’s administrative state.
Both jurists acknowledged the vital role of constitutional separation of powers in constraining government power and preserving individual liberty, yet they drew different lessons for judicial review of agency action. Scalia feared an overweening judiciary that would use the power of judicial review to direct regulatory policy and supplant the policy judgments of presidential appointees. As a consequence, he was a strong proponent of the Chevron doctrine, under which courts are required to defer to reasonable agency interpretations of ambiguous federal statutes. Under Chevron, if a regulatory law is not crystal clear, the implementing agency gets to decide what it means.
Scalia defended Chevron against its detractors left and right, seeing a useful constraint on activist courts. Gorsuch, on the other hand, sees in Chevron a potential threat to the fundamental obligation of the judiciary to interpret federal statutes and “say what the law is.”
Writing separately in one recent case, Gorsuch explained that under the Constitution, as written, it is the job of “the people’s representatives” to “adapt the law to changing circumstances.” Under Chevron, however, federal agencies may issue legally binding interpretations of federal law and revise these interpretations as circumstances (and political administrations) change. Although he stopped short of calling for Chevron’s reversal, Gorsuch warned that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”
Allowing agencies to offer authoritative statutory interpretations, Gorsuch warned, threatens to transfer “the job of saying what the law is from the judiciary to the executive,” thereby inviting “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.”
To illustrate his concern, Gorsuch discussed the plight of an illegal immigrant, Concepcion Padilla-Caldera. In 2005, Gorsuch’s court had concluded immigrants in Padilla-Caldera’s position could seek an adjustment of their immigration status from the attorney general. The Board of Immigration Appeals (BIA) had other ideas. Thus when Padilla-Caldera sought such an adjustment, the BIA adopted a new interpretation of the relevant federal law, barring Padilla-Caldera’s claim. Under Chevron and its progeny, this new interpretation must prevail, and Padilla-Caldera was out of luck. As Gorsuch recounted, “an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals.” Warned Gorsuch, “If this doesn’t qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we’ve forgotten what might.”
Gorsuch’s opinion highlighted how potentially obscure questions of administrative law can make it more difficult for individuals to understand what the law requires. At the same time, he identified how these same doctrines challenge some of the fundamental premises upon which our Constitution is founded.
One need not agree with Gorsuch in every case to find his independence of mind refreshing and invigorating. He is a jurist unafraid to ask difficult questions, all the while being true to his judicial oath and the Constitution he is sworn to uphold. He would make a powerful addition to the Supreme Court — even if he might not always follow the maxim “What would Nino do?”
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