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Wednesday, March 22, 2017

Judging Judge Gorsuch on the Separation of Powers

Judge Gorsuch's views on the Chevron doctrine, which directs reviewing courts to defer to agency constructions of ambiguous statutes, have received a lot of attention, and for good reason:  They are well-articulated, interesting, and controversial.  "There's an elephant in the room with us today," Judge Gorsuch quipped in his concurring opinion in Gutierrez-Brizuela v. Lynch, and he seems ready to play the elephant hunter on behalf of the separation of powers.

The separation of powers, however, is much more than the Chevron standard of review.  As my colleague Leah Litman points out at Take Care, Judge Gorsuch's views on agency structure are also a measure of his understanding of the separation of powers.  For example, she asks, will Judge Gorsuch respect the existing conventions of agency independence?  There's reason to think, Litman explains, that Gorsuch might increase presidential power on that score.

Also worth considering, I'd briefly add, are Judge Gorsuch's views on access to courts.  Does the separation of powers mean, for instance, that standing doctrine should restrict regulatory beneficiaries' access to judicial review of administrative action?   On the question of constitutional litigation's role in our polity in general, Gorsuch has been forthright.  In "Liberals'N'Lawsuits," Gorsuch wrote that "overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary," while also noting "that constitutional lawsuits have secured critical civil-rights victories."  He echoed the latter sentiment during his confirmation hearing, also adding that "[t]he problem lies on both sides of the aisle."  It's safe to assume that the Supreme Court's pattern of tightening up access to courts would persist with a Justice Gorsuch on the bench.   

But it's not easy to pin down his views on doctrines like standing to challenge agency action, as the Electronic Privacy Information Center has pointed out.  In Hydro Resources v. EPA, Judge Gorsuch opened a small window onto that subject, stating: "Federal courts do not wield plenary jurisdiction over every slight or suit.  Instead, our authority is restricted in ways small and large by constitutional and statutory design.  Because of this, the task of ensuring ourselves of our own subject matter jurisdiction 'is not a mere nicety of legal metaphysics,' but essential to the rule of law . . . ."  Following Justice Scalia's opinion for the Court in Lujan v. Defenders of Wildlife, Judge Gorsuch went to discuss standing as an "essential" limit on federal jurisdiction.  Against that backdrop, Judge Gorsuch held that a regulated party had suffered a judicially cognizable injury in fact based upon its "'out-of-pocket cost'" in obeying a government regulation, "'whether or not [there may be] pecuniary loss' associated with the new rule."  That's not a surprising holding, as regulated parties tend to have an easier road to establishing a justiciable injury in fact under current standing doctrine.

There aren't enough tea leaves to offer a bold prediction about the future of standing doctrine or Gorsuch's potential role in that future.  But there's enough to point that judging Judge Gorsuch on the separation of powers doesn't stop with Chevron.  Denying court access is another way of deferring to executive discretion.         


Posted by Seth Davis on March 22, 2017 at 03:15 PM | Permalink


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