Add another federal judge to the growing chorus of individuals concerned that the Court’s administrative law jurisprudence has gone off the rails. Egan v. Del. River Port Auth., — F.3d —, 2017 WL 1055568 (3d Cir. Mar. 21, 2017) involved discrimination and retaliation claims an employee brought against the Port Authority, alleging violations of federal law accordingly. Losing before a jury, Egan appealed. The Third Circuit reversed the verdict, partly on the basis that Egan’s suit was based on a regulation that was entitled to Chevron deference and that the jury instructions did not adequately convey the agency’s interpretation of the statute in said regulation. All of this is very important for Mr. Egan but very unimportant for administrative law.
Far more interesting for the latter is Judge Jordan’s concurrence. And he really pulls no punches.
Concurring in the judgment, he nevertheless wrote separately “to note my discomfort with our reasoning,” dictated as it is by Chevron and Auer. Id. at *10. To Judge Jordan, “Chevron and Auer and their like are . . . contrary to the roles assigned to the separate branches of government . . . .” Id. Not only do they “embed perverse incentives in the operations of government,” but “they require us at times to lay aside fairness and our own best judgment and instead bow to the nation’s most powerful litigant, the government, for no reason other than that it is the government.” Id.
Highlighting how these doctrines undermine separation of powers, Judge Jordan notes that “Our Constitution was . . . framed specifically to avoid the concentration of powers in the hands of a single branch of government. Chevron, however, has dramatically undermined that purpose.” Id. Though the Constitution vests the federal judiciary with “[t]he judicial Power of the United States,” Art. III, s. 1, Chevron “requires judges to ignore their own best judgment on how to construe a statute, if the executive branch shows up in court with any” reasonable interpretation. Egan at *11. Mix in Auer, and “agencies are entitled to deference for their interpretation of statutes and then to a further does of deference for their interpretation of the rules and regulations they layer on top of those statutes.” Id. This
undermines annihilates the judicial check and allows for the very accumulation of powers that the Framers subdivided the federal government to prevent from occurring.
These doctrines also “diminish the role of Congress.” Id. Wise to the game that it can pass broadly-worded statutes that amount to little more than aspirational goals, Congress is given perverse incentives “to pass vague laws and leave it to agencies to fill in the gaps, rather than undertaking the difficult work of reaching consensus on divisive issues.” Id.
Combined, this “[d]eference to agencies strengthens the executive branch not only in a particular dispute under judicial review; it tends to the permanent expansion of the administrative state.” Id. at *12. In a bitter irony, the very separation of powers that was supposed to restrain the federal government is a significant obstacle to those ends ever since the Supreme Court struck down one of the only effective checks the legislature had on administrative agencies. See INS v. Chadha, 462 U.S. 919 (1983) (striking down unicameral legislative veto for violating constitutional requirement of bicameralism and presentment). This is deeply problematic, for “[w]hen the power to create and interpret and enforce the law is vested in a single branch of government, the risk of arbitrary conduct is high and individual liberty is in jeopardy.” Egan at *12. After all, it is only by virtue of robust separation of powers that we have “a government of laws and not of men.” Mass. Const. part I., Art. XXX. Absent that, we live in a world where “[a]gencies can make the ground rules and change them in the middle of the game.” Egan at *12.
Judge Jordan acknowledges that there is a role for deference – but, importantly, he cites a case that stands for a weaker form of deference than Chevron. See id. at *13 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Correctly, in my view, he notes that this “level of deference appropriately takes into account an agency’s specialized knowledge while retaining for the judiciary the prerogative ‘to say what the law is.'” Id. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Such specialized knowledge is simply not relevant in cases involving “the legal matters on which federal courts are now routinely told, in the name of Chevron, to bow down and obey the executive branch.” Id. His frustration is palpable – “So much for the job of the judicial branch.” Id.
Most interesting of all, perhaps, is that Judge Jordan quotes Judge Gorsuch’s now famous (or infamous, depending on how you feel about Chevron) concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). Egan at *12. Additionally, Judge Jordan takes note of the fact that the Separation of Powers Restoration Act, which would abrogate both Chevron and Auer, has passed the House. Id. at *14 n.9; see Regulatory Accountability Act of 2017, H.R. 5.
Is this a harbinger of opinions to come, where more courts of appeals’ judges feel free to critique Supreme Court doctrines that deprive them of their core functions, perhaps in light of changing circumstances given the nomination of an open Chevron critic to the Supreme Court as well as movement in Congress to get rid of that decision? Here’s to hoping.