Introduction

When it comes to Judge Gorsuch’s views on administrative law, the focus has been on one opinion—his concurrence in Gutierrez-Brizuela v. Lynch. 1Open this footnote Close this footnote 1 834 F.3d 1142 (10th Cir. 2016). …Open this footnote Close In addition to authoring the majority opinion, 2Open this footnote Close this footnote 2 See id. at 1143, 1147-49 (holding the Board of Immigration Appeals could not apply its decision imposing stricter standards for adjustment of status petitions to a petition filed after that decision was issued but before the Tenth Circuit overruled prior case law to approve the new standards). …Open this footnote Close Judge Gorsuch concurred separately to air concerns over Chevron’s rule requiring courts to defer to the judgments of executive agencies. 3Open this footnote Close this footnote 3 See id. at 1149, 1153 (Gorsuch, J., concurring); see also Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984) (setting out the two-step framework for Chevron deference). …Open this footnote Close “We managed to live with the administrative state before Chevron,” he wrote. 4Open this footnote Close this footnote 4 Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring). …Open this footnote Close “We could do it again.” 5Open this footnote Close this footnote 5 Id. …Open this footnote Close Commentators across the political spectrum have seized upon the opinion, praising 6Open this footnote Close this footnote 6 See, e.g., David Feder, The Administrative Law Originalism of Neil Gorsuch, Yale J. on Reg.: Notice & Comment (Nov. 21, 2016), http://yalejreg.com/nc/the-administrative-law-originalism-of-neil-gorsuch. Other commentators recognize that the Chevron debate does not always have a clear political valence. See, e.g., Diane Klein, Gorsuch, Gutierrez-Brizuela, and Goodbye, Chevron, Dorf on Law (Feb. 1, 2017), http://www.dorfonlaw.org/2017/02/gorsuch-gutierrez-brizuela-and-goodbye.html. …Open this footnote Close and criticizing 7Open this footnote Close this footnote 7 See, e.g., Alexander C. Kaufman, Trump’s Supreme Court Pick Wants to Gut Legal Rule That Environmental Groups Rely On, Huffington Post (Feb. 13, 2017, 4:01 PM ET), http://huff.to/2kpZdXp. …Open this footnote Close it as indicative of a willingness to abandon a pillar of the modern administrative state. But those tempted to rush to Chevron’s defense or to hasten its demise will miss other aspects of Judge Gorsuch’s administrative law jurisprudence.

I. Facing the Behemoth

Judge Gorsuch’s Gutierrez-Brizuela concurrence indicts the status quo, claiming that “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.” 8Open this footnote Close this footnote 8 Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring). …Open this footnote Close Arguing from the Framers’ understanding, Judge Gorsuch explains why we should care about the separation of powers in the first place—alluding to fundamental concerns of fair notice, equal protection, and democratic legitimacy—and why, in his view, Chevron and Brand X should raise concerns “[e]ven under the most relaxed or functionalist view of our separated powers.” 9Open this footnote Close this footnote 9 Id. at 1149-51, 1155. Judge Gorsuch might also be interested in the historical origins of Chevron itself. See generally Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017) (tracing historical origins of judicial deference to executive statutory interpretation). …Open this footnote Close

He also questions the doctrine’s underlying logic. The Court in Brand X held that “judicial precedent [may not] foreclose an agency from interpreting an ambiguous statute” 10Open this footnote Close this footnote 10 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). …Open this footnote Close because Chevron’s premise is that “ambiguities in statutes . . . are delegations of authority to the agency to fill the statutory gap.” 11Open this footnote Close this footnote 11 Id. at 980. …Open this footnote Close So agencies must be permitted to overrule earlier judicial decisions in some circumstances. Granting that this rule “follow[s] pretty naturally” if one accepts Chevron’s premise, Judge Gorsuch attacks the premise, arguing that “Chevron’s claim about legislative intentions is no more than a fiction—and one that requires a pretty hefty suspension of disbelief at that.” 12Open this footnote Close this footnote 12 Gutierrez-Brizuela, 834 F.3d at 1151, 1153 (Gorsuch, J., concurring). …Open this footnote Close None of this was necessary to decide the case. Nevertheless, Judge Gorsuch seized an opportunity to “bring[] the colossus” of the administrative state “fully into view.” 13Open this footnote Close this footnote 13 Id. at 1151. …Open this footnote Close

II. Frenetic Lawmaking

In two recent cases, Judge Gorsuch opined sua sponte about the excessive proliferation of conflicting agency directives. In El Encanto, Inc. v. Hatch Chile Co., he refused to defer to a “sub-regulatory manual” to determine the scope of permissible discovery in Trademark Trial and Appeal Board proceedings, in part because the party’s proposed reading would have conflicted with the notice-and-comment regulations of the Patent and Trademark Office (PTO). 14Open this footnote Close this footnote 14 825 F.3d 1161, 1165-66 (10th Cir. 2016). …Open this footnote Close But Judge Gorsuch had independent grounds for rejecting the informal guidance: the PTO manual expressly disclaimed force-of-law authority. 15Open this footnote Close this footnote 15 Id. at 1166. …Open this footnote Close Nevertheless, he chided that “if the agency is indeed so confused that it has spoken out of both sides of its regulatory mouth, it has to be the side speaking unambiguously through formal rulemaking . . . that speaks the more loudly.” 16Open this footnote Close this footnote 16 Id. …Open this footnote Close

Last year, in Caring Hearts Personal Home Services, Inc. v. Burwell, Judge Gorsuch wrote that the Centers for Medicare and Medicaid Services simply “applied the wrong law” when it penalized a health services provider pursuant to regulations it adopted after the contested services were provided. 17Open this footnote Close this footnote 17 824 F.3d 968, 970 (10th Cir. 2016). …Open this footnote Close Although the case involved seemingly simple retroactivity issues, Judge Gorsuch characterized it as “a case about an agency struggling to keep up with the furious pace of its own rulemaking.” 18Open this footnote Close this footnote 18 Id. …Open this footnote Close Apart from his concern that the judiciary is no longer saying “what the law is,” 19Open this footnote Close this footnote 19 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151-52 (10th Cir. 2016) (Gorsuch, J., concurring) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803)). …Open this footnote Close he worried that “legislating agencies don’t know what their own ‘law’ is.” 20Open this footnote Close this footnote 20 Caring Hearts, 824 F.3d at 969-70 (emphasis added). …Open this footnote Close And in “a world in which the laws are ‘so voluminous they cannot be read’” by the agency that promulgates them, he argued, our “constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.” 21Open this footnote Close this footnote 21 Id. at 976 (quoting The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter ed., 1961)). …Open this footnote Close

III. Substance over Form

Judge Gorusch’s skepticism of Chevron’s premise is paradigmatic of his willingness to privilege substance over form in the administrative law context. De Niz Robles v. Lynch provides another example. 22Open this footnote Close this footnote 22 803 F.3d 1165 (10th Cir. 2015). …Open this footnote Close There, he wrote for the panel that, while the Board of Immigration Appeals could overrule an earlier interpretation of a statute by the Tenth Circuit under Brand X, it could not apply its new rule retroactively to an earlier-filed petition for adjustment of status. 23Open this footnote Close this footnote 23 Id. at 1171-72. …Open this footnote Close He noted that, unlike adjudication, legislation is presumed not to operate retroactively because of due process and equal protection interests. 24Open this footnote Close this footnote 24 Id. at 1169-71. …Open this footnote Close Although an agency’s exercise of Brand X authority in an adjudication is ostensibly adjudicatory, Judge Gorsuch reminded readers that “substance doesn’t always follow form.” 25Open this footnote Close this footnote 25 Id. at 1173. …Open this footnote Close In reality, “an agency operating under the aegis of Chevron step two and Brand X comes perhaps as close to exercising legislative power as it might ever get.” 26Open this footnote Close this footnote 26 Id. at 1172. …Open this footnote Close

In a passage recognizing the limits on this “analogy to legislative activity,” 27Open this footnote Close this footnote 27 See id. at 1174. …Open this footnote Close Judge Gorsuch clarified his view. Although recognizing Brand X adjudications have force of law only after judicial approval, he insisted that “what’s at issue in these cases is an agency decision” and that decision is “a policy choice subject to revision”—not an authoritative interpretation of law. 28Open this footnote Close this footnote 28 Id. at 1174 n.7. …Open this footnote Close It is no surprise, then, that he wonders “whether the combination of Chevron and Brand X further muddles the muddle.” 29Open this footnote Close this footnote 29 Id. at 1171. …Open this footnote Close Because the agency is making policy—not interpreting law—and because courts are deferring to that policy judgment, it’s policy all the way down. 30Open this footnote Close this footnote 30 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150-51 (10th Cir. 2016) (Gorsuch, J., concurring). …Open this footnote Close

IV. Delegation Run Riot

This all invites the question: other than through deference, how are judges to get along in a world where statutes are often little more than statements of general policy? Indeed, Chevron is arguably justified by the very separation of powers concerns that animate Judge Gorsuch’s jurisprudence since it rests on the view that resolving statutory ambiguity requires courts to venture beyond the “traditional tools of statutory construction” 31Open this footnote Close this footnote 31 See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). …Open this footnote Close and make essentially legislative judgments. Scrapping Chevron could merely swap one separation of powers problem for another. 32Open this footnote Close this footnote 32 Indeed, the alternative is potentially more problematic. See City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013). …Open this footnote Close

It is unsurprising, then, that Judge Gorsuch displays sympathy for the nondelegation doctrine. United States v. Nichols 33Open this footnote Close this footnote 33 United States v. Nichols, 784 F.3d 666 (10th Cir. 2015) (en banc). …Open this footnote Close is a telling example. There, the Tenth Circuit declined to rehear a panel decision upholding the Sex Offender Registration and Notification Act, which delegated to the Attorney General authority to determine the statute’s retroactive effect but provided no guidance on how to do so. 34Open this footnote Close this footnote 34 See id. at 668 (Gorsuch, J., dissenting from the denial of rehearing en banc). …Open this footnote Close Judge Gorsuch dissented from the denial of rehearing. Rooting his analysis in the Constitution’s text and the Framers’ understanding, 35Open this footnote Close this footnote 35 See id. at 670. …Open this footnote Close he argued that the statute “effectively pass[ed] off to the prosecutor the job of defining the very crime he is responsible for enforcing” and therefore unconstitutionally delegated legislative authority to the executive branch. 36Open this footnote Close this footnote 36 Id. at 677. …Open this footnote Close That analysis transcended the facts of the case. 37Open this footnote Close this footnote 37 See, e.g., id. at 670 (“So it is that ‘to abandon openly the nondelegation doctrine [would be] to abandon openly a substantial portion of the foundation of American representative government.’” (alteration in original) (quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002))). …Open this footnote Close And Nichols is no anomaly. 38Open this footnote Close this footnote 38 See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153-55 (10th Cir. 2016) (Gorsuch, J., concurring). …Open this footnote Close

At the same time, Judge Gorsuch admits the difficulties inherent in nondelegation. Namely, he recognizes that the “[d]elegation doctrine may not be the easiest to tease out and it has been some time since the Court has held a statute to cross the line.” 39Open this footnote Close this footnote 39 Nichols, 784 F.3d at 677 (Gorsuch, J., dissenting from the denial of rehearing en banc). …Open this footnote Close But Nichols demonstrates a recognition that, as he has written in another context, “the difficulty of a task is not reason enough to abandon it, especially if it illuminates and aids in the enforcement of underlying constitutional demands.” 40Open this footnote Close this footnote 40 De Niz Robles v. Lynch, 803 F.3d 1165, 1174 (10th Cir. 2015). …Open this footnote Close

V. A Radical Departure?

Some have suggested that Judge Gorsuch’s views would represent a major shift from Justice Scalia’s. 41Open this footnote Close this footnote 41 See, e.g., Jonathan H. Adler, Gorsuch’s Judicial Philosophy Is Like Scalia’s—With One Big Difference, Wash. Post (Feb. 1, 2017), http://wapo.st/2mdhiKq. …Open this footnote Close But that is far from clear. After initially endorsing Chevron, 42Open this footnote Close this footnote 42 See Justice Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, Duke Law Journal Administrative Law Lecture (Jan. 24, 1989), in 1989 Duke L.J. 511, 516-17. …Open this footnote Close Justice Scalia appeared to exhibit buyer’s remorse. 43Open this footnote Close this footnote 43 Justice Alito recently stated that Justice Scalia was “rethinking the whole question of Chevron deference.” See Robin Bravender, Alito Snubs Chevron, Obama EPA’s ‘Eraser,’ Greenwire (Nov. 17, 2016), http://www.eenews.net/greenwire/2016/11/17/stories/1060045952. …Open this footnote Close For example, he recognized Chevron may not have been “faithful to the text of the Administrative Procedure Act,” 44Open this footnote Close this footnote 44 United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting). …Open this footnote Close insisted on strict application at step one 45Open this footnote Close this footnote 45 See, e.g., City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227-29 (1994). …Open this footnote Close and step two, 46Open this footnote Close this footnote 46 See, e.g., Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442-44 (2014); Christensen v. Harris County, 529 U.S. 576, 591 (2000) (Scalia, J., concurring in part and concurring in the judgment). …Open this footnote Close suggested Chevron should not apply at all in criminal cases, 47Open this footnote Close this footnote 47 See Whitman v. United States, 135 S. Ct. 352, 352-54 (2014) (Scalia, J., statement respecting the denial of certiorari). …Open this footnote Close dissented from the Brand X rule, 48Open this footnote Close this footnote 48 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1014-17 (2005) (Scalia, J., dissenting); see also Mead, 533 U.S. at 248 (Scalia, J., dissenting) (“I know of no case, in the entire history of the federal courts, in which we have allowed a judicial interpretation of a statute to be set aside by an agency . . . .”). …Open this footnote Close lambasted Auer deference, 49Open this footnote Close this footnote 49 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211-13 (2015) (Scalia, J., concurring in the judgment); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1342 (2013) (Scalia, J., concurring in part and dissenting in part). …Open this footnote Close and conceded the nondelegation doctrine is “essential to democratic government.” 50Open this footnote Close this footnote 50 See Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). …Open this footnote Close And for his part, Judge Gorsuch recognizes that in a post-Chevron world “courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.” 51Open this footnote Close this footnote 51 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). In our review of precedential opinions, Judge Gorsuch regularly sided with agencies. For example, in labor cases involving the NLRB, Gorsuch sided with the agency in three out of four cases. Compare Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198, 1200 (10th Cir. 2014) (voting with the NLRB), Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1079 (10th Cir. 2012) (voting the same way), and Laborers’ Int’l Union, Local 578 v. NLRB, 594 F.3d 732, 734 (10th Cir. 2010) (voting the same way), with NLRB v. Cmty. Health Servs., Inc., 812 F.3d 768, 780 (10th Cir. 2016) (Gorsuch, J., dissenting) (voting against the NLRB). …Open this footnote Close

The suggestion that Judge Gorsuch would represent a radical shift may also mistake his propensity to critically examine doctrine for a penchant to destroy it. But asking why doctrine looks the way it does seems like the quintessential task of a Supreme Court Justice. 52Open this footnote Close this footnote 52 Indeed, the sitting Justices recently raised serious questions about Chevron, seemingly sussing out one another’s views in anticipation of a new colleague. See Transcript of Oral Argument at 11-12, 14-18, 38-39, Esquivel-Quintana v. Sessions, No. 16-54 (U.S. Feb. 27, 2017). …Open this footnote Close And some of the shifts Judge Gorsuch might foreseeably bring about—like refusing to defer on pure questions of law 53Open this footnote Close this footnote 53 See Negusie v. Holder, 555 U.S. 511, 531 (2009) (Stevens, J., concurring in part and dissenting in part); cf. Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1246 (2015) (Thomas, J., concurring in the judgment). …Open this footnote Close and closely scrutinizing an agency’s cost-benefit analysis 54Open this footnote Close this footnote 54 See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 230, 235 (2009) (Breyer, J., concurring in part and dissenting in part). …Open this footnote Close —have already been suggested by others.

Moreover, Judge Gorsuch emphasizes that formalism matters because our constitutional structure has consequences for “personal liberty, fair notice, and equal protection.” 55Open this footnote Close this footnote 55 Judge Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 2016 Sumner Canary Lecture at Case Western Reserve University School of Law (Apr. 7, 2016), in 66 Case W. Res. L. Rev. 905, 915 (2016); see Peter Margulies, Judge Gorsuch on Empathy and Institutional Design, Lawfare (Feb. 2, 2017, 12:29 PM), https://www.lawfareblog.com/judge-gorsuch-empathy-and-institutional-design. …Open this footnote Close In a speech discussing De Niz Robles v. Lynch, 56Open this footnote Close this footnote 56 803 F.3d 1165 (10th Cir. 2015). …Open this footnote Close he bemoaned that our separation of powers—the original solution to the problem of “parchment barriers” 57Open this footnote Close this footnote 57 See The Federalist No. 48 (James Madison), supra note 21, at 308. …Open this footnote Close —has become parchment itself: “[A]n executive agency acting in a faux-judicial proceeding and exercising delegated legislative authority purported to overrule an existing judicial declaration about the meaning of existing law and apply its new legislative rule retroactively to already completed conduct.” 58Open this footnote Close this footnote 58 Gorsuch, supra note 55, at 915. …Open this footnote Close But he couched his structural concerns in practical, human terms: “What did all this mixing of what should be separated powers mean for due process and equal protection values?” 59Open this footnote Close this footnote 59 Id. …Open this footnote Close That “after a man relied on a judicial declaration of what the law was,” an agency changed the rules, penalizing Mr. De Niz Robles “for conduct he couldn’t alter, and denying him any chance to conform his conduct to a legal rule knowable in advance.” 60Open this footnote Close this footnote 60 Id. …Open this footnote Close

At first blush, Judge Gorsuch’s concerns may seem to run in different directions. His objection to Brand X is that agencies are encroaching on the judicial power “to render authoritative judgments about what a statute means.” 61Open this footnote Close this footnote 61 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring); see also id. at 1150 (“Quite literally then, . . . an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals.”). …Open this footnote Close But his criticism of Chevron—and muddling of executive and legislative authority—rests on the notion that current doctrine “permit[s] agencies to make the law.” 62Open this footnote Close this footnote 62 See id. at 1152; see also De Niz Robles v. Lynch, 803 F.3d 1165, 1174 n.7 (10th Cir. 2015) (portraying agencies as “mak[ing] policy judgments,” not “construing statutory text”). …Open this footnote Close No matter. Judge Gorsuch recognizes the incompatibility between these competing judicial-separation-of-powers and legislative-nondelegation narratives. 63Open this footnote Close this footnote 63 See Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring) (contrasting differing “account[s]” of agency action). …Open this footnote Close But his thesis does not rise or fall on either. Rather, the ultimate principle is judicial nondelegation: “[f]or whatever the agency may be doing . . . , the problem remains that courts are not fulfilling their duty to interpret the law.” 64Open this footnote Close this footnote 64 Id. at 1152-53. …Open this footnote Close

To be sure, Judge Gorsuch’s views admit of certain tensions. His conclusion that Chevron may be “a judge-made doctrine for the abdication of the judicial duty” 65Open this footnote Close this footnote 65 Id. at 1152. …Open this footnote Close raises the ultimate question with which he will be peppered in coming weeks: what is the judicial duty? Considering judges adopted Chevron with a view toward judicial restraint, 66Open this footnote Close this footnote 66 See City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013) (“We have cautioned that ‘judges ought to refrain from substituting their own interstitial lawmaking’ for that of an agency. . . . That is precisely what Chevron prevents.” (quoting Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980))). …Open this footnote Close what is a judge committed to full-throated judicial responsibility to do? If “goliath . . . falls,” 67Open this footnote Close this footnote 67 See Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring). …Open this footnote Close who will take his place? We may find out soon enough.

* Trevor W. Ezell, J.D. Candidate, Stanford Law School, 2017. Lloyd Marshall, J.D. Candidate, Stanford Law School, 2018.