Leah Litman  //  3/20/17  //  In-Depth Analysis


Some of Judge (and future Justice) Gorsuch’s proponents like to say that a Justice Gorsuch will be good for the separation of powers.  They point out that Judge Gorsuch has authored opinions criticizing two Supreme Court decisions that have had the effect of increasing executive power.  One of the cases that Judge Gorsuch has criticized is Chevron v. Natural Resources Defense Counsel, the case which held that courts must credit a federal agency’s “reasonable” interpretation of an “ambiguous” statute. 

It’s pretty easy to see how Chevron increases executive power:  A lot of statutes are ambiguous with respect to important questions; there are many possible interpretations of such statutes; and several of those interpretations are probably “reasonable” ones.  Allowing an agency to pick which interpretation of a statute it likes (among the multiple reasonable interpretations) increases the power of agencies, especially relative to federal courts, who would otherwise be authoritatively interpreting ambiguous federal statutes.

The second case that Judge Gorsuch has criticized is National Cable & Telecommunications Association v. Brand X Internet ServicesBrand X held that federal courts must “defer” under Chevron to an agency’s interpretation, even when the agency’s interpretation “overrules” a prior federal court decision interpreting the federal statute. 

By way of background: In Brand X, the Ninth Circuit had said that cable modem services are “telecommunications service[s]” within the meaning of the federal Communications Act.  After that decision, the Federal Communications Commission (FCC) disagreed, and said that actually cable modem services are not telecommunications services within the meaning of the federal Communications Act; rather, they are information service providers.  When the case got back to the Ninth Circuit, the Ninth Circuit refused to defer to the FCC’s interpretation of the statute on the ground that the FCC had “overturned” a judicial decision.  The Supreme Court disagreed, and held that a court’s prior interpretation of a statute only trumps a subsequent agency interpretation if the statute is unambiguous. 

As with Chevron,it’s fairly easy to see how Brand X increases executive power.  Because a lot of statutes are ambiguous (at least in some respects), Brand X allows agencies to resolve the meaning of a lot of statutory questions, including when courts have already purported to do so.

In Gutierrez-Brizuela v. Lynch, Judge Gorsuch criticized both Chevron and Brand X. There, the Tenth Circuit (in an opinion for the court written by Judge Gorsuch), rejected an effort by the Board of Immigration Appeals (BIA) to apply its own interpretation of a statute retroactively (i.e., to conduct that occurred before the Tenth Circuit upheld the BIA’s interpretation of the statute). The BIA’s interpretation had “overturned” a prior Tenth Circuit decision.

But it’s not the panel opinion in Gutierrez-Brizuela that has impressed Judge Gorsuch’s proponents.  It’s a concurrence he wrote (to his own opinion, which is how we know he really wanted to put these ideas out for public consumption).  The opening of his concurrence reads:  “[T]he fact is 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.  Maybe the time has come to face the behemoth.”  I’m sure you can guess how the rest of the concurrence goes. 

So does Judge Gorsuch’s skepticism of Chevron and Brand X mean that a Justice Gorsuch would be good for the separation of powers?  Maybe.  Even with a Justice Gorsuch on the bench, it is not clear that there are currently 5 votes to overturn either Chevron or Brand X.  Justice Kennedy sometimes doesn’t like Chevron, but isn’t a reliable vote against it, or against Brand X.  Justice Thomas wrote Brand X, although he has since cited Philip Hamburger’s work criticizing administrative law and expressedgravedoubts about Chevron.  Justice Alito doesn’t appear to have strong views on the matter.  Justice Breyer loves federal agencies.  And Justices Ginsburg, Sotomayor, and Kagan have not written much to suggest they might be skeptical of those decisions. 

To be sure, the Chief Justice is sometimes very skeptical of Chevron.  So he and Justice Gorsuch could write some concurrences (or dissents) in Chevron or Brand X cases.  But dissents and concurrences alone won’t significantly move the administrative law needle on executive power.  Judge Gorsuch is more critical of Chevron than Justice Scalia was at the time of his passing.  But it’s still not clear how much Judge Gorsuch’s arrival may move the Court as a whole on this issue.  (There are some contrary predictions, however.)

Moreover, there is every reason to think Justice Gorsuch will rule in other ways that increase executive power.  I’ll just discuss one here—the President’s power to remove the heads of federal agencies.

Agencies can be roughly grouped into two categories—“executive” agencies and “independent” agencies.  Generally speaking, an agency is executive if the head of the agency is removable at will (i.e., can be fired for any reason) by the President. An agency is independent if the heads of the agency are not removable at will by the President. (The heads of independent agencies can only be removed “for cause,” which includes things like extreme malfeasance.  “For cause” restrictions effectively mean an agency head can’t be removed, since it’s really hard to prove malfeasance.) 

If an agency is headed by someone who is removable at will by the President, the President can just fire an agency head who won’t carry out his policies.  If an agency is not headed by someone who is removable at will by the President, the President can’t fire someone just because that person won’t do his bidding.  Presidents therefore have a kind of control over executive agencies that they lack over independent agencies.   

We’ve already seen this dynamic playing out in the Trump administration.  The Equal Employment Opportunity Commission is an independent agency, and the EEOC has elected to continue to press the argument that discrimination against transgender individuals is unlawful discrimination on the basis of sex.  The Department of Justice, however, is an executive agency.  And unlike the EEOC, the Trump DOJ reversed DOJ’s earlier position that segregating transgender students into restrooms on the basis of their external sex organs constitutes unlawful discrimination on the basis of sex.  If DOJ hadn’t changed course, the President could have removed (or threatened to remove) the head of the DOJ, Attorney General Jeff Sessions.  (Much like he fired Sally Yates for refusing to defend his Muslim Ban.)  But the President can’t really do the same to make the EEOC fall in line.

Why is this relevant to Judge Gorsuch?  In two cases, Humphrey’s Executor and Morrison v. Olson, the Supreme Court has said it is perfectly constitutional for Congress to limit the ability of a President to remove the head of an agency.  Those cases are the constitutional foundation for independent agencies.  But separation of power formalists (of which I would count Judge Gorsuch as one) view these cases with considerable suspicion.  Separation of powers formalists look at the Constitution and see only three branches of government, each with distinct powers.   For this reason, separation of power formalists view independent agencies as something of a constitutional embarrassment.

This kind of separation of powers formalism is reflected in Judge Gorsuch’s concurrence in Gutierrez-Brizuela.  For example, he wrote: “[T]he founders found proof of the wisdom of a government of separated powers ….  In the executive they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people.”  This idea—that the Constitution “place[s] the task of” “execut[ing]” statutes “in the hands of” the President alone—leads separation of powers formalists to think that independent agencies are constitutionally suspect. 

Why?  As the late Justice Scalia explained:  “Article II … provides ‘The executive Power shall be vested in a President of the United States.’ … [T]his does not mean some of the executive power, but all of the executive power.”  Under that view, which Justice Scalia articulated in his Morrison dissent, and Judge Gorsuch echoed in his Gutierrez-Brizuela concurrence, the President must have the authority to carry out congressional statutes; limiting his ability to control officers who carry out federal statutes, such as agency heads, is therefore unconstitutional.   

Separation of powers formalists are therefore inclined to limit Congress’s ability to restrict the President’s power to remove the heads of federal agencies.  For example, in Free Enterprise Fund v. Public Company Accounting and Oversight Board, the Supreme Court held unconstitutional an agency structure under which the heads of one agency (the PCOAB) were removable for cause by the heads of another agency (the Securities Exchange Commission), who were themselves only removable for cause by the President.  Free Enterprise Fund reasoned that although Humphrey’s Executor and Morrison had determined one layer of for cause restrictions is constitutional, two is more than one.  I’m characterizing Free Enterprise Fund’s reasoning a little, but not by much. 

Free Enterprise Fund is laced with language and reasoning similar to Justice Scalia’s dissent in Morrison, which, on its face, suggests that even Humphrey’s Executor might be wrong.  And the language in Free Enterprise Fund suggests the Justices in the majority are unwilling to approve any independent agencies that differ from the independent agencies the Court has already upheld.  Free Enterprise Fund said that “Perhaps the most telling indication of” the “severe constitutional problem” with the PCAOB was “the lack of historical precedent” for it. 

Why is this important to the separation of powers?  The en banc D.C. Circuit (i.e., the full court) is set to hear a case that addresses whether it is constitutional for the Director of the Consumer Financial Protection Bureau to be removable “for cause” by the President.  There’s only one layer of “for cause” restrictions between the CFPB Director and the President, so that would seem to be fine.  But the CFPB is purportedly different form other independent agencies because, whereas most other federal agencies are headed by multiple individuals, the CFPB is just headed by one. 

Is that enough to make the restriction on the President’s ability to remove the CFPB director unconstitutional?  I certainly don’t think so.  The CFPB director might be more powerful than an agency director who is part of a multi-member commission.  But it does not follow that the President has any less authority over a single-director agency than over a multi-member agency. If anything, a single director agency is easier to control (because the President only has to remove one person, instead of several to reassert control).

But is the CFPB’s single-director structure enough to make the removal restrictions unconstitutional to a separation of powers formalist who views Humphrey’s Executor and Morrison as incorrect?  Perhaps.  And if so, that will mean President Trump can fire the director of the CFPB (Richard Cordray) if he doesn’t like what Cordray is doing.  It will mean that President Trump can control what the CFPB does (or, under his control, doesn’t do).  

The CFPB case is just one example of how appointing a separation of powers formalist to the Supreme Court will increase executive power in some important respects.  Separation of powers formalists view independent agencies as constitutionally suspect, and their solution is to give the President control over agencies.  So, if you like the idea of a Justice Gorsuch because you think he might restrict executive power, you might want to think again.


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