Justice Gorsuch's Critique of the Administrative State
The New York Times on Sunday published David French's extended interview with Supreme Court Justice Neil Gorsuch about Gorsuch's new book (co-authored with Janie Nitze, his former law clerk), Overruled: The Human Toll of Too Much Law. (Full disclosure: I haven't read the book, which comes out this week.) Justice Gorsuch comes across in the interview as an interesting, idiosyncratic, and humane judge who marches to the beat of his own drum. His primary preoccupation is the fate of the little guy: indigenous peoples, criminal defendants, and especially small business owners caught in a complex web of burdensome regulations.
Justice Gorsuch devotes much of the interview (and presumably the book) to explaining his aversion to administrative regulation. This is obviously a timely topic in light of the Court's recent decisions weakening administrative agencies in various ways. Though these decisions do not dismantle the administrative state, collectively they constrain agency authority and empower courts to second guess agency decisions. Loper Bright v. Raimondo overrules Chevron deference. The major questions doctrine denies agencies the power to tackle "major" problems unless Congress has specifically delegated such authority. SEC v. Jarkesy limits agencies' ability to conduct internal enforcement proceedings against entities that have allegedly violated agency rules. Corner Post v. Board of Governors of the Federal Reserve System holds that the statute of limitations for challenging agency action is not tolled until the specific plaintiff has been injured. Ohio v. EPA seemingly expands courts' ability to hold agency action arbitrary or capricious. And so on.
Justice Gorsuch joined all these decisions. He wrote the majority opinion in Ohio v. EPA and penned enthusiastic concurrences in several of the other cases. Clearly, he is an important driver of this anti-administrative project.
French's interview doesn't get into the doctrinal weeds of any of these cases, which involve a wide variety of legal issues. Rather, Gorsuch uses the forum to explain more broadly his skepticism of administrative regulation. Big businesses, he explains, can manage regulations just fine because they have the resources to hire lawyers and compliance teams. Individuals and small businesses, by contrast, bear the real brunt of over-regulation. Gorsuch offers a few stories of sympathetic people ruined by complicated, unreasonable regulatory regimes. Though he doesn't exactly put it this way, he clearly sees the Court's recent anti-agency decisions as a way of vindicating the ordinary American against oppressive big government. In essence, Gorsuch is saying, "Here's why I'm doing this."
There's certainly something to Justice Gorsuch's concerns. He's right that regulations are often complicated and sometimes overly burdensome. Some impose terrific costs that far outweigh their benefits. As he explains, those costs can damage individual's lives in profound ways. And Gorsuch is probably also correct that progressive defenders of the administrative state don't spend enough time grappling with those real harms. (I include myself among the guilty, though I do address a closely related problem here.)
That said, while Justice Gorsuch's concerns for the little guy are laudable, they do not, in my mind, justify the Court's recent administrative law decisions. Indeed, to the extent Gorsuch apparently believes his concerns justify those rulings, his reasoning is deeply flawed.
Most fundamentally, assuming arguendo that Gorsuch is correct that too many regulations inflict serious harm on people, why should courts take it upon themselves to fix that problem? Gorsuch's argument is that over-regulation is bad public policy, but the relative merits of governmental policy fall squarely within the expertise and constitutional prerogatives of the political branches. Federal judges, by contrast, lack the training and legal authority to design regulatory policy. Justice Gorsuch may provide good reasons to reconsider the wisdom of the administrative state, but his interview doesn't explain why judges should fix this problem. (Perhaps Gorsuch takes these issues up in the book.)
Second, Gorsuch's core argument appears to be that regulation does more harm than good, but at least in the interview he examines only one side of this coin. He is clearly correct that some regulations are costly and unjust, but he barely acknowledges regulations' importance in protecting society from environmental harms, financial market fraud, unsafe drugs, workplace hazards, and other dangers to human and societal well-being. Justice Gorsuch seems to think that the Court's significant overhaul of administrative law is justified because administrative regulation cumulatively inflicts serious harm on ordinary Americans. Informed policy analysis, however, considers both costs and benefits, but Gorsuch bases his conclusions on one without the other.
Third, and relatedly, the relative costs and benefits of regulation is fundamentally an empirical question, but Gorsuch's analysis is anecdotal. The stories he tells are powerful and offer an important reminder that mindless bureaucracy can do terrible harm to real people. To justify the legal sea change that his Court has wrought, though, Gorsuch really needs to do more than tell a few stories. Fundamentally, Gorsuch's point is that the administrative state isn't worth it, but how can we know that without a deep inquiry into the many ways agency regulations both help and harm society? Admittedly, any study along these lines would itself be imperfect, given that (among other complications) ostensibly empirical analyses often require subjective judgments about how much economic value to assign to, say, a human life or a tree. Despite these limitations, there is ample empirical research in this area, and Justice Gorsuch seems to have arrived at his conclusion about the administrative state based on his own intuitions and anecdotes without wrestling with any data.
Moreover, rather than aiming at particularly unfair or burdensome regulatory regimes, Gorsuch attacks all of them. He takes a blunderbuss to a problem that requires a scalpel. Instead of assuming that the entire administrative state is too costly, a more nuanced approach would be to target regulations that fail the cost-benefit analysis. Justice Gorsuch, though, paints with a much broader brush, which undermines his argument. Why should the reader accept a criticism of agency regulation writ large that relies on an argument that fairly applies only to some regulations? Gorsuch's point about the cost of regulation is even odder given that Executive Order 12866 for decades has required cost-benefit analysis as part of the federal rulemaking process. Justice Gorsuch would likely object that this process hasn't blocked many a burdensome rule, but if that's the case, the solution would be to revisit how the government conducts its cost-benefit analyses, not for judges to change numerous doctrines of administrative law (that, incidentally, are unrelated to cost-benefit analysis).
Fourth, Justice Gorsuch further justifies the Court's administrative law decisions by suggesting that the Court, by limiting agency power, has put the ball back in Congress's court. (In one part of the interview, French reads Gorsuch's book to say, "Congress, do your job.") On this view, Congress doesn't act because it can just punt its problems to agencies, so if courts make it harder for Congress to punt, then Congress will take its legislative role more seriously.
This is a common refrain, but I think it's naive. There are enormous structural barriers to a functional Congress, and the Court's recent revisions to administrative law don't (and couldn't) remove them. Longstanding legislative vetogates and more recent deep partisan gridlock (exacerbated by voter clumping, partisan gerrymandering, and media echo chambers) make it very difficult for Congress to address serious national problems. The Supreme Court's recent administrative law rulings don't remove those barriers to Congressional action; they just make it harder for administrative agencies to act, too.
Gorsuch responds by noting that Congress adds about two million words to the federal code each year. Congress, the Justice tells us, is plenty active. This rejoinder misses the point. Congress in recent decades has found it increasingly difficult to compromise across the aisle and address serious national problems like immigration and the environment. Congress ought not be measured by the number of words it's producing but rather by whether it's meaningfully addressing serious problems. While Congress has produced some recent, important legislation such as the Inflation Reduction Act and the CHIPS and Science Act, it's been unable to address many important issues that concern many Americans.
Finally, Justice Gorsuch's concern about the little guy rings a little hollow in light of other decisions he joined that ruled against other little guys. He ruled against the interests of Arizona minority voters who will have a harder time voting because of that State's election rules, which disproportionately burden racial minorities. He joined a ruling denying union organizers the ability to recruit farm workers at their workplaces, thus hampering the (often poorly paid) workers' ability to protect their interests. He authored an opinion that made it nearly impossible for capital inmates to successfully challenge the protocols used to execute them, even when those protocols are likely to inflict excruciating pain. And, of course, the administrative law decisions he defends will cumulatively make it harder to protect ordinary Americans against powerful corporations who defraud them, endanger their workplaces, sell them harmful products, and pollute their air and water. Regulations can impose costs on humans, but they can also protect humans against serious harms. When those harms occur, it's often the little guys who feel them most acutely.
Justice Gorsuch makes important points about the costs of the administrative state, but his critique is terribly one-sided. This maybe shouldn't be surprising. I've argued elsewhere that Gorsuch's separation-of-powers and originalist arguments against administrative agencies are similarly overly simplistic, reading a bit like the essay of a precocious student who has done only half the reading. Likewise, though Gorsuch is not ideologically monolithic (though usually conservative, he has voted with progressive Justices on issues like sexual orientation discrimination, tribal autonomy, and criminal procedure), his questions at oral argument often sound like the commentary of a man who long ago made up his mind.
In fairness, Justice Gorsuch is hardly alone in this regard. Many Justices are so confident in their views that they ignore important arguments on the other side of the ledger. Still, Gorsuch's attack on the administrative state is notable for its lack of nuance. Perhaps his book will offer a more complete account, but in both his opinions and his interview with David French, Justice Gorsuch comes across as an earnest, talented, and distinctive jurist who is so sure he is correct that he doesn't bother to grapple with arguments on the other side.