This week, the nation bore witness to Neil Gorsuch’s Supreme Court confirmation hearings. The hearings had little to do with the qualifications of Judge Gorsuch, whose past experience both as a judge and an attorney plainly qualify him for the bench. Instead, the hearings focused on his judicial philosophy, and deeper questions about the role of the judicial branch of government outlined in Article III of the United States Constitution.
The line of demarcation was drawn across the pages of Gorsuch’s dissenting opinion in TransAm Trucking v. ARB, U.S. Dept. of Labor, 883 F.3d 1206 (10th Cir 2016). The nominee’s opposition, most notably Senator Al Franken, expressed concerns about how the Judge’s narrow reading of 49 U.S.C. § 31105 would have supported the termination of a truck driver who elected to abandon his 18-wheeler trailer rather than freeze to death per the instructions of his employer.
Admittedly, Judge Gorsuch’s opinion does offer a whiff of a time honored legal criticism:
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. ~ Anatole France.
In his dissent from the Tenth Circuit’s decision to decline review, and thus uphold, the administrative law judge’s ruling that the trucker’s termination was unlawful, Judge Gorsuch wrote that the majority stretched its application of the law to achieve the result it wanted rather than the result the statute demanded. The statute at issue reads, in pertinent part:
A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because
. . .
(B) the employee refuses to operate a vehicle because—the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or
(ii)the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
But, respectfully, it seems to me Chevron is a curious place to turn for support given that the Department never argued the statute is ambiguous, never contended that its interpretation was due Chevron step two deference, and never even cited Chevron. In fact, the only party to mention Chevron in this case was TransAm, and then only in a footnote in its brief and then only as part of an argument that the statute is not ambiguous. We don’t normally make arguments for litigants (least of all administrative agencies), and I see no reason to make a wholly uninvited foray into step two of Chevronland.TransAm Trucking Inc., 883 F.3d at 1216 (Gorsuch, J. dissenting).
To Gorsuch’s way of thinking, the word “operate” is unambiguous. It is easily defined. Someone who operated a vehicle is not entitled to sue under a theory that they were punished for not operating a vehicle. To many, this author included, such reasoning seems unfair. TransAm’s conduct in instructing its driver to risk death beside its cargo stinks of corporate greed. But it is important to remember that the law, particularly appellate law, is not just about the litigant in front of the court. Cases like TransAm trucking will be cited by lawyers representing plaintiffs, civil defendants, criminal defendants, relators, and petitioners for decades to come. In our system, the precedent of the circuit courts of appeals and the Supreme Court of the United States are not mere history lessons to be taught in civics class. They become the law itself.
Judge Gorsuch’s concern is a palpable one. There are too many laws. No member of the House of Representatives or the Senate even knows the substance of 1/10th of the laws on the books. To ensure the continuation in administration of these esoteric laws, congress delegates its authority to the executive branch of government. These administrative agencies, in effect, become the tyrants of small fiefdoms – wielding the power to write, interpret, and enforce regulations they come up with largely shielded from any public scrutiny. Sometimes, they use this power for good and sometimes their exercise of power works grave injustices. In both instances, they use their power like they did for Alphonse Madden, the truck driver in TransAm. They take a statute that necessitates an undesired outcome and promulgate interpretive regulations and rulings that change the outcome, without regard to any law of statutory construction or interpretation. This is the crux of Chevron, which permits such executive vigilantism so long as the administrative agency’s interpretation is not unreasonable. For those whose time fussing with the law is limited, please consult this crude example:
Congress enacts a law that caffeine in food and drinks sold or manufactured in interstate commerce should be “carefully regulated to protect the public health and to better inform consumer purchases.” This law is then placed within the purview of the Food and Drug Administration by way of congressional delegation, authorizing the FDA to promulgate regulations to achieve the ends of congress. In researching the issue, the FDA concludes that caffeine is dangerous, and should be heavily regulated and omitted from most of its current food and drink applications. It passes a regulation that concludes that doses of caffeine in food over x% are inherently unsafe, and ties the inclusion of caffeine in food above that dosage to the “tampering” language of 18 U.S.C. 1365 or some other FDA related criminal offense. Assuming that the research and interpretations required for this scenario to play out are “reasonable” interpretations of congress’ new law, the FDA’s conduct here criminalized caffeine without a single vote from a publicly elected official agreeing to it. When the law is challenged, Chevron’s “reasonableness” inquiry – what Gorsuch calls Part Two of Chevron could very well save the regulation.
There is value in holding congress to the words it prints on paper. The expectation that it is the judge’s job to cure unjust results is to pass the buck away from our elected representatives. It is in this lens that I view Senator Franken’s indignation during the confirmation hearing. The questions of a man who has no regard for what his vote in congress truly means, or the lives it can effect. Rather than justify a rejection of his nomination, Judge Gorsuch’s approach in TransAm telegraphs to the American People that he will hold congress accountable for its ineptitude. That is something we should all be grateful for, particularly if we want to keep this Republic alive in the 21st Century.