Is the doctrine of Chevron deference compatible with traditional notions of constitutional separation of powers? Legal academics (and at least one justice) have begun to raise questions about the propriety and desirability of the Chevron doctrine — the doctrine that provides that courts must defer to permissible agency interpretations of ambiguous statutory language.

Yesterday, in a concurring opinion in Gutierrez-Brizuela v. Lynch, the Honorable Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit joined those who think it is time to reconsider Chevron. His concurring opinion begins:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the 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. . . .

It continues further on:

Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, the framers sought to ensure that judicial judgments “may not lawfully be revised, overturned or refused faith and credit by” the elected branches of government. . . . Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X’s terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-85 (2005). By Brand X’s own telling, this means a judicial declaration of the law’s meaning in a case or controversy before it is not “authoritative,” id. at 983, but is instead subject to revision by a politically accountable branch of government. . . .

Yet even as now semi-tamed (at least in this circuit), Brand X still risks trampling the constitutional design by affording executive agencies license to overrule a judicial declaration of the law’s meaning prospectively, just as legislation might — and all without the inconvenience of having to engage the legislative processes the Constitution prescribes. A form of Lawmaking Made Easy, one that permits all too easy intrusions on the liberty of the people. . . .

In the Administrative Procedure Act (APA), Congress vested the courts with the power to “interpret . . . statutory provisions” and overturn agency action inconsistent with those interpretations. 5 U.S.C. § 706. Congress assigned the courts much the same job in the immigration field where we happen to find ourselves today. 8 U.S.C. § 1252(a)(2)(D). And there’s good reason to think that legislative assignments like these are often constitutionally compelled. After all, the question whether Congress has or hasn’t vested a private legal right in an individual “is, in its nature, judicial, and must be tried by the judicial authority.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803) . . . Yet, rather than completing the task expressly assigned to us, rather than “interpret[ing] . . . statutory provisions,” declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is “ambiguous,” and at step two they decide whether the agency’s view is “reasonable.” But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct. . . .

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. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . . .

Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . .  It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design and, as Justice Frankfurter once observed, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions” imposed by the Constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). . . .

And it concludes:

What would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute. But de novo judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election. And an agency’s recourse for a judicial declaration of the law’s meaning that it dislikes would be precisely the recourse the Constitution prescribes — an appeal to higher judicial authority or a new law enacted consistent with bicameralism and presentment. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things.

I’ve excerpted Judge Gorsuch’s 22-page concurrence extensively, but the whole thing is worth a read. As far as administrative law stuff goes, it’s a great read (even if, I must confess, I am not yet convinced of the argument). It presents a compact and powerful argument.

Judge Gorsuch’s provocative concurrence is not all that Gutierrez-Brizuela offers for administrative law folk. The majority opinion (which Judge Gorsuch also wrote) addresses an important and interesting question about the interaction of judicial and agency interpretations under Chevron and Brand X. Specifically, the opinion addresses whether agency interpretations of ambiguous statutory language that conflict with (and effectively trump) prior judicial opinions of such language should apply retroactively — an issue the 10th Circuit has struggled with before.

As Judge Gorsuch explains in the introduction to his opinion for the court:

We recently confronted the thorny problem what to do when an executive agency, exercising delegated legislative authority, seeks to overrule a judicial precedent interpreting a congressional statute. In our constitutional history, after all, judicial declarations of what the law is haven’t often been thought subject to revision by the executive, let alone by an executive endowed with delegated legislative authority. Still, in recent years the Supreme Court has instructed us that, when a statute is ambiguous and an executive agency’s interpretation is reasonable, the agency may indeed exercise delegated legislative authority to overrule a judicial precedent in favor of the agency’s preferred interpretation. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. (Brand X), 545 U.S. 967 (2005). And that development required us to confront this question: accepting that an agency may overrule a court, may it do so not only prospectively but also retroactively, applying its new rule to completed conduct that transpired at a time when the contrary judicial precedent appeared to control? De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015). Now that curious question has returned, this time with a twist.

The 10th Circuit had previously concluded that the agency’s interpretation applies prospectively. The “twist” here is whether this rule applies when the action in question occurs after the agency has issued an interpretation that overrules a prior judicial interpretation, but before that interpretation has been reviewed and upheld in the relevant court. In other words, during that period, are individuals subject to the agency’s authority bound by the prevailing judicial interpretation or the new agency interpretation? According to the 10th Circuit, until the court has the opportunity to review the agency’s new interpretation, the judicial interpretation applies as binding precedent in the relevant jurisdiction.

It’s an interesting question, and one that benefits greatly from Judge Gorsuch’s clear and thoughtful explication. It’s also one, as Judge Gorsuch’s concurrence highlights, that should cause us to think about the role of deference to federal agencies within our system of separation of powers — and, in this case, prompted him to think about the wisdom of deference to an agency’s statutory interpretations.

UPDATE: For what it’s worth, I am more in the “mend it, don’t end it” camp when it comes to Chevron. That is, I believe Chevron needs to be constrained, but I am not convinced that it should be overruled. I summarized my views at the recent Missouri Law Review symposium on the administrative state. A draft of the resulting essay is here.   For more in this vein, see this article I co-authored with Nathan Sales.