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Trump's Supreme Court Nominee Skeptical Of Federal Agency Power

Mar 17, 2017
Originally published on March 17, 2017 7:43 am

At most Supreme Court confirmation hearings, questions focus on hot-button social issues — abortion, affirmative action, same-sex marriage — and the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception.

But senators are also likely to spend a lot of time examining the nominee's views on federal regulations — of the environment, health and safety laws for workers, and laws on consumer rights and business.

In question is a doctrine that Gorsuch has criticized but that also once helped his mother.

The Chevron doctrine

The Chevron decision is perhaps the most cited case in American law. Decided unanimously in 1984, it established a general rule of deferring to an agency's reasonable interpretation of a statute.

The idea is that in passing a law, Congress sets out broad provisions and tells agencies that have considerable expertise to establish rules for carrying out the law's mandates. In short, the agency is to fill in the details.

The Chevron case stems from the Reagan administration. When President Ronald Reagan took office in the early 1980s, the White House adopted more permissive rules for air pollution caused by manufacturing plants. The Natural Resources Defense Council sued the Environmental Protection Agency, then under the leadership of Anne Gorsuch, contending the agency had exceeded its authority.

Recognize that name, Gorsuch? Yes indeed, her son is the current Supreme Court nominee.

Back then, the Supreme Court ultimately sided with the Reagan administration and EPA Administrator Gorsuch, declaring that where a statute is ambiguous, the courts should defer to an agency's reasonable interpretation.

Judge Gorsuch's aversion to agency deference

Ironically, Judge Gorsuch has increasingly criticized that rule as an abdication of judicial responsibility. In some of his dissenting and concurring opinions on the U.S. Court of Appeals for the 10th Circuit, he has called for reconsideration of the Chevron decision.

It is one of the ways in which he is more conservative than the justice he has been nominated to succeed, the late Antonin Scalia. Scalia was generally an advocate of Chevron deference to agencies — his view was that agencies are at least politically accountable, whereas judges are not.

But Chevron "cuts both ways," as professor Jonathan Adler of Case Western Reserve University School of Law points out.

"An agency might want Chevron deference when it wants to regulate more, but under the Trump administration, agencies will want to claim Chevron deference when they're trying to deregulate," Adler says.

Many Gorsuch defenders argue that having someone on the Supreme Court who is less deferential to agencies should reassure those who don't trust the Trump administration.

It would be "harder" for a Trump administration to get its way if there were no Supreme Court decision requiring the courts to defer to the agencies, says Jeffrey Pojanowski, professor at Notre Dame Law School.

Yet Elliot Mincberg, senior fellow at the liberal People For the American Way, argues Gorsuch himself is "incredibly inconsistent." He says the judge sides with agencies when they rule in favor of business, and against agencies when they rule in favor of workers or consumers.

Mincberg has looked at all of Gorsuch's dissenting opinions on the appeals court.

"Any judge's dissents are particularly interesting because dissents are essentially written for yourself and express your point of view, and they show where you disagree with your own colleagues," Mincberg says. "In Gorsuch's case, even though the 10th Circuit until fairly recently was a majority Republican circuit, Gorsuch is consistently to the right of even staunch conservatives."

The case of the frozen trucker

Perhaps no Gorsuch opinion sticks in the craw of liberals more than the so-called frozen trucker case. The trucker, Alphonse Maddin, was transporting cargo through Illinois when the brakes on his trailer froze. The temperature outside was 27 degrees below zero. He called the company and was told help was on the way. But after three hours, he was desperate.

"I could not feel my feet ... my speech was slurred, and I was having trouble breathing," Maddin said at a press event hosted by Democratic senators on Wednesday. "I started to have thoughts I was going to die."

So with great difficulty, Maddin unhitched the trailer and drove away, returning about 15 minutes later when help arrived. He was fired by the company, which the Department of Labor later ruled was a violation of federal law.

A 10th Circuit panel agreed, ruling against the company and citing language in the statute that protects workers who refuse to operate a vehicle out of safety concerns. Gorsuch dissented.

"What was particularly disturbing was ... for a textualist to pretty much dismiss the text of the statute," says Gorsuch critic Caroline Fredrickson of the American Constitution Society.

Conservative commentator Ed Whelan defends the Gorsuch opinion.

"[The driver] did not operate his truck; he abandoned his truck," Whelan asserts.

Deferring to the White House

More central yet is the question of whether outside of the agency context, Gorsuch would be likely to defer to the president.

"When it comes to a president like President Trump," there is "a very big difference between the kind of authority that administrative agencies exercise, which is in essence delegated from Congress, and the kind of authority that the president exercises, which is executive power itself," Mincberg says. "In those areas Judge Gorsuch has shown himself increasingly deferential to the chief executive officer."

Ultimately, there is no getting away from the fact that the Supreme Court is the final check on the other branches of government. But as law professor Richard Hasen of the University of California, Irvine, puts it: People are tapped to be justices because their ideologies align with the politicians in power.

"Neil Gorsuch is being chosen not because he's a Republican Party hack. Far from it," Hasen explains. "He's a principled conservative, but the way he's going to vote is going to line up with what Republican partisans want."

Intern Lauren Russell contributed to this report.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

RACHEL MARTIN, HOST:

At most Supreme Court confirmation hearings, you hear a lot about divisive social issues - abortion, affirmative action, same-sex marriage. And the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception. But senators are likely to spend a lot of time on the nominee's views about federal regulations, on the environment, health and safety laws for workers, and laws on consumer rights and business.

As NPR legal affairs correspondent Nina Totenberg reports, these are subjects that may sound mundane, but they affect the lives of millions of Americans.

NINA TOTENBERG, BYLINE: Essentially, this story is about a doctrine known as Chevron deference - no, don't turn this off. Give me a chance to explain.

The Chevron decision is perhaps the most often cited case in American law. Decided unanimously in 1984, it established a general rule of deferring to an agency's reasonable interpretation of a statute. The idea is that in passing a law, Congress sets out broad provisions and tells agencies that have considerable expertise to establish rules for carrying out the law's mandates. In short, the agency is to fill in the details.

Here's how the Chevron case came about. When the Reagan administration took office in the early 1980s, it adopted new and more permissive rules for air pollution by manufacturing plants. The Natural Resources Defense Council sued the EPA, then under the leadership of Anne Gorsuch, contending the agency had exceeded its authority.

Recognize that name, Gorsuch? Yep, her son is the current Supreme Court nominee. Back then, the Supreme Court ultimately sided with the Reagan administration and Anne Gorsuch, declaring that where a statute is ambiguous, the court should defer to an agency's reasonable interpretation.

Ironically, Judge Gorsuch has increasingly criticized that rule as an abdication of judicial responsibility. And in some of his dissenting and concurring opinions, he has called for reconsideration of the Chevron decision. It's one of the ways in which he is more conservative than the justice he's been nominated to succeed, the late Antonin Scalia.

Scalia was generally an advocate of Chevron deference to agencies. His view was that agencies are at least politically accountable and judges are not. But as Case Western Reserve professor Jonathan Adler points out...

JONATHAN ADLER: Chevron can cut both ways. An agency may want Chevron deference when it wants to regulate more. But under the Trump administration, agencies will want to claim Chevron deference when they're trying to deregulate.

TOTENBERG: And many Gorsuch defenders argue that having someone on the court less deferential to the agencies should reassure those who don't trust the Trump administration. Notre Dame law professor Jeffrey Pojanowski.

JEFFREY POJANOWSKI: It would be harder for a Trump administration to act independently when the law is unclear and the courts ultimately disagree with what their interpretation is.

TOTENBERG: But Elliot Mincberg of the liberal People for the American Way argues Gorsuch himself is, quote, "incredibly inconsistent" - that he sides with agencies when they rule in favor of business and against agencies when they rule in favor of workers or consumers. Mincberg has looked at all of the Gorsuch dissents.

ELLIOT MINCBERG: Any judge's dissents are particularly interesting because dissents are written essentially for yourself and express your point of view. And they show where you disagree with your own colleagues. And in Gorsuch's case, even though the 10th Circuit until fairly recently was a majority Republican circuit, Gorsuch is consistently to the right of even staunch conservatives.

TOTENBERG: Perhaps no Gorsuch opinion sticks in the craw of liberals more than the so-called frozen trucker case. The trucker Alphonse Maddin was transporting cargo through Illinois when the brakes on his trailer froze. The temperature outside was 27 below zero. He called the company to send help. But after three hours, he was getting desperate.

(SOUNDBITE OF ARCHIVED RECORDING)

ALPHONSE MADDIN: I could not feel my feet. My speech was slurred, and I was having trouble breathing. I started having thoughts that I was going to die.

TOTENBERG: So with great difficulty, Maddin unhitched the trailer and drove away, returning about 15 minutes later when help arrived. He was fired by the company, which the Labor Department later ruled a violation of federal law. A federal appeals court panel agreed, ruling against the company and citing language in the statute that protects workers who refuse to operate a vehicle out of safety concerns. Gorsuch dissented.

Gorsuch critic Caroline Fredrickson of the American Constitution Society argues that for a judge who preaches about adhering to the text of a statute, this was a particularly indefensible decision.

CAROLINE FREDRICKSON: What was, you know, particularly disturbing is, I think, you know, for a textualist to pretty much dismiss the text of the statute

TOTENBERG: Conservative Ed Whelan defends the Gorsuch opinion.

ED WHELAN: Well, he did not operate his truck. He abandoned his truck.

TOTENBERG: More central yet is the question of whether outside of the agency context Gorsuch would be likely to defer to the president. Again, Elliot Mincberg.

MINCBERG: When it comes to a president like President Trump, there's a very big difference between the kind of authority that administrative agencies exercise, which is in essence delegated from Congress, and the kind of authority that a president exercises, which is executive power itself. And in those areas, Judge Gorsuch has shown himself increasingly deferential to the chief executive officer.

TOTENBERG: Ultimately, there's no getting away from the fact that the Supreme Court is the ultimate check on the other branches of government. But as professor Richard Hasen of the University of California, Irvine puts it...

RICHARD HASEN: The justices are chosen because they have a certain ideology. And that ideology lines up with what the partisans in Congress - in the Senate and what the presidents want. And so Neil Gorsuch is being chosen not because he's a Republican party hack - far from it. I think he's a principled conservative. But the way he's going to vote is going to line up with what Republican partisans want.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(CHRISTIAN SCOTT AND ATUNDE ADJUAH'S "THE CORNER") Transcript provided by NPR, Copyright NPR.