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Gorsuch and the Power of the Executive: Behind the Congressional Stage, a Legal Drama Unfolds

While Republicans have failed in their efforts to weaken the Affordable Care Act through congressional action, Donald Trump could weaken it through administrative action—although his nominee for the Supreme Court, Neil M. Gorsuch, might have second thoughts about that.

As UC Berkeley Law Professor Steven Davidoff Solomon wrote in the New York Times March 14, Gorsuch is one of the “most prominent critics” of a legal doctrine that has led courts to defer to federal agencies’ interpretations of laws.

The keystone decision establishing agency deference was the 1984 Chevron U.S.A. v. Natural Resources Defense Council, in which the U.S. Supreme Court ruled that where Congress has not spelled out implementation of the law, an executive agency can make its own rules and decide how to apply them. Solomon explains: “One rationale for this doctrine is that an agency, with its expertise, is better positioned than a judge to know a statute’s meaning.”

Subsequent rulings have fine-tuned agencies’ power to interpret and apply the laws they are administering.  That places considerable clout in the hands of the executive branch, which employs about 1.4 million civilians.

“This big bureaucracy is not necessarily a bad thing,” Solomon observes. “The economy is much bigger and more complex than it was 200 years ago. A large and diverse economy needs regulation. And while the Trump administration has promised to reduce the bureaucracy as many presidents have before, it is hard to see the modern economy running without some degree of regulation, whether it concerns the security of banks or the safety of food and drugs.”

But conservatives worry about the power of the administrative state. Thus, conservatives would like to rein in judicial deference doctrine that empowers it.

Some of the rest of us have a more nuanced view: we know that executive power can sometimes protect us and sometimes not, as, for instance, when a judge, citing deference doctrine precedents, recently sided with the Department of Energy against environmentalists.

Federal regulatory power does not automatically protect citizens or protect them equally. It all depends on how the agency in question uses that power, That, in turn, depends on who’s steering the ship.

For instance, the Obama administration used Chevron deference to justify the rules putting the Affordable Care Act into effect. Now that Trump is sitting in Obama’s seat, Trump could head off in the opposite direction, using agency power to undermine the ACA.

He would not necessarily get away with it: despite the accumulated clout of deference precedents, courts do not always defer to agency judgment.

There is, for example an ACA case still in judicial limbo: the House of Representatives’ suit (House v. Burwell) to stop the Obama administration’s cost-sharing payments to insurance companies. After a U.S. District Court judge ruled in favor of the House, the Obama administration filed an appeal, but Obama left office before a judgment was rendered.

House leaders and Trump’s Department of Justice then asked the Court for a delay in appeal proceedings pending legislative action—which we have seen bite the dust.

The question now: will Trump abandon the appeal initiated by the Obama White House and let the earlier ruling against the Obama administration stand? If he does, the consequent disruption of the insurance marketplace could, according to  US News & World Report,  “jeopardize coverage for millions of people,”

This is not quite a cliffhanger to match the drama over the failed house bill on health care, but it reminds us that the wheels of law keep the ship of state moving.

The chief navigator of that ship is the Supreme Court—which brings us back to Neil Gorsuch, who, as it turns out, has an intimate connection with the Chevron decision establishing deference to agencies: it was rendered in a case involving his mother, Anne M. Gorsuch.

Anne Gorsuch was Reagan’s EPA director when the EPA reversed a Carter administration rule governing power plant remissions under the Clean Air Act. The National Resources Defense Council sued to reinstate the stricter Carter-era rule and won in a lower court. Chevron, which had a dog in the fight, appealed, and the Supreme Court reinstated the Reagan-era rule, establishing what is now known as “Chevron deference.”

In the words of Justice John Paul Stevens:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Comes now Neil Gorsuch, son of Anne, stating, in a recent opinion:

“Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them.”

With Gorsuch’s thumb on the judicial scales, more than one commentator has predicted that the ground under agency deference doctrine may shift, undermining the power of the executive branch to work its will. And that, in the age of Trump, could to be a very good thing.

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