On October 16, 2017, the Supreme Court of the United States denied a petition for certiorari (to hear the case) in Scenic America, Inc. v. Department of Transportation, Docket No. 16-739. Scenic America sought review of a decision of the United States Court of Appeals for the District of Columbia Circuit [PDF version]. Justice Neil Gorsuch penned an interesting statement respecting the denial of certiorari, in which he was joined by Chief Justice John Roberts and Justice Samuel Alitio [PDF version]. In this post, I will examine aspects of Justice Gorsuch's statement that are significant with respect to Chevron deference, a concept that is important in the immigration context.
In this post, I will not focus on the specific issues of the Scenic America case. However, some context is needed in order to set the stage for Justice Gorsuch's statement. Scenic America had asked the Supreme Court to review, among other issues, whether the Department of Transportation was entitled to Chevron deference for its interpretation of terms in contracts to which it was a party. Under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 866 (1984) [PDF version], administrative agencies are afforded deference in interpreting statutory law where the statutory provision is “ambiguous” and the agency interpretation is “reasonable.” We have discussed Chevron in many articles on site. Please see our article on Matter of D-R-, 27 I&N Dec. 105 for a recent example [see article].
We have discussed on site that Justice Gorsuch had previously written two interesting immigration law decisions touching on Chevron deference while he was a Judge of the United States Court of Appeals for the Tenth Circuit. The first of our articles on the issue was on then-Judge Gorsuch's decision in De Niz Robels, v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [see article]. Justice Gorsuch's most comprehensive discussion of Chevron subsequently came in a concurrence to his own decision in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) [see blog]. In this decision, Justice Gorsuch discussed his concerns with the application of Chevron and questioned whether it is consistent with the separation of powers between the Executive and the Legislative branches. Then, last June, now-Justice Gorsuch wrote an interesting dissent from denial of certiorari on a non-Chevron case that nevertheless would have addressed issues involving deference to an administrative agency [see blog].
With that background in mind, we can examine some of the interesting points of Justice Gorsuch's statement respecting the denial of certiorari in Scenic America.
Justice Gorsuch noted that courts generally resolve contract disputes by applying “the pretty ancient rules of contract construction.” He noted that courts “often resolve contractual ambiguities against the party who wrote the agreement, in part on the theory that the drafter might have avoided the dispute by picking clearer terms.” However, he stated that courts have often adopted a different approach when one of the parties to the contract dispute is an agency of the Federal Government. He describes this approach as one “suggesting that an administrative agency's interpretation of an ambiguous contractual term should always prevail-at least so long as the agency's interpretation falls within a (generously defined) zone of 'reasonableness.'” Beyond Justice Gorsuch's thinly veiled cynicism concerning the breadth of the “zone of reasonableness, we can see that he was alluding to the decisions of some appellate courts to generously apply the principles of Chevron deference to adjudicate contract disputes where the Federal Government is a party.
Justice Gorsuch expressed his clear disagreement with the application of Chevron deference to contract disputes:
“But whatever one thinks of that practice in statutory interpretation cases, it seems quite another thing to suggest that the doctrine (or something like it) should displace the traditional rules of contract interpretation too.”
Of course, in the immigration context, the issue of the application of Chevron deference is most likely to arise in the statutory interpretation context. Under the current rules, Chevron gives the Board of Immigration Appeals (BIA) and the Department of Homeland Security (DHS) significant latitude in interpreting statutory provisions. However, a narrowing of the breadth of Chevron deference in any context may potentially signal that Federal appellate courts more latitude in reviewing agency interpretations of the immigration statutes. For this reason, it is interesting for our purposes that Justice Gorsuch touches on Chevron in its statutory interpretation context as well, albeit without expressing a definitive opinion on the issue.
First, Justice Gorsuch noted that the very principle of Chevron deference “is often defended on the ground that statutory ambiguities reflect a kind of implicit decision by Congress to delegate lawmaking power to the agency to handle the problem on its own.” In short, Justice Gorsuch takes the position here that one defense of Chevron hinges on the notion that Congress, in writing an “ambiguous” statute, intentionally delegates its lawmaking power to the Executive Branch. He then writes that “even assuming (without granting) the accuracy and propriety of that much, what's the case for supposing that Congress implicitly delegates to agencies the power to adjudicate their own contractual disputes too?” The primary thrust of Justice Gorsuch's concurring opinion in in Gutierrez-Brizuela was that the current application of Chevron may upset the separation of powers between Congress and the Executive. Here, he declines to “grant” the propriety of an argument defending Chevron in the statutory interpretation context that hinges on the notion that Congress can delegate its lawmaking powers. This statement adds further credence to the idea that he may be looking to place limits on Chevron, if not outright overturn it in the appropriate case, although he does not commit himself to this course of action either.
In the same passage, Justice Gorsuch suggested two additional arguments that are often advanced in favor of Chevron. The first is the “theory that agencies are technical experts in the fields they are charged with regulating.” The second is “on the premise that agencies have the public interest at heart when interpreting statutory texts.” However, Justice Gorsuch does not discuss or reference the propriety of these arguments in the statutory interpretation context, instead only questioning their applicability to contract disputes.
For immigration lawyers and those interested more generally in administrative law, Justice Gorsuch's expression of his views on Chevron will continue to be of importance to follow. In his statement, Justice Gorsuch expressed clear cynicism of the use of Chevron in contract disputes, an issue which has caused somewhat of a split among the circuit courts (noted by Justice Gorsuch in his statement). Accepting or limiting Chevron's application to contract disputes could be considered to be a proverbial low-hanging fruit compared to its current broad use in the statutory interpretation context. In the latter context, Justice Gorsuch's tone in his Scenic America dissent evinced that he continues to harbor questions about Chevron deference in general, although it is important to avoid inferring too much from a short statement respecting the denial of certiorari in a case that involved a narrower issue than the general concept of Chevron deference as applied to statutory and regulatory interpretation. Nevertheless, it is interesting to see that Chief Justice Roberts and Justice Alito opted to join Justice Gorsuch's statement. Justice Clarence Thomas has also at times expressed concerns about the scope of Chevron deference, although he did not join this statement from Justice Gorsuch.
For my part, I think that it is important for the Supreme Court to at the very least begin narrowing the scope of Chevron deference. One of the major reasons that I supported Justice Gorsuch's nomination so strongly was that he showed clear concern for the issue as a judge of the Tenth Circuit. Our constitutional system of government depends on the notion that the congress writes the laws and the president executes the laws. It is too often the case today that the Executive Branch tasked with executing the laws has also become the de facto writer of the laws it executes. This does not only do harm to our constitutional system of government, as suggested although not outright stated by then-Judge Gorsuch in Gutierrez-Brizuela, but it also does practical harm to the lives of both American citizens and non-citizens. First, it is inherently dangerous to vest both the lawmaking and law enforcement powers in the figure of the executive. Second, the “delegation” of lawmaking authority from the elected representatives of the people in Congress to unelected bureaucrats staffing the Federal agencies under the purview of the Executive Branch gives often unaccountable functionaries far too much control over the day-to-day lives of Americans.
Justice Gorsuch's elevation to the Supreme Court and his forceful writing while on the Tenth Circuit may have already begun to pay dividends. Since his nomination by President Trump, several lower court decisions have cited to his concurrence in Gutierrez-Brizuela in questioning Chevron. For example, please see the concurring opinion of Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit in Waterkeeper Alliance v. Environmental Protection Agency, 853 F.3d 527, 539 (D.C. Cir. 2017) [PDF version]. However, lower court judges are ultimately bound by Chevron. For this reason, I hope to see Justice Gorsuch not only continue to question the propriety of Chevron, but to hopefully encourage more of his colleagues to do so as well as appropriate cases are brought to the Supreme Court for review.