Gorsuch says ‘deference doctrine’ is ‘zombified’
When Neil Gorsuch was running for the Supreme Court, he made the usual rounds of Federalist Society conferences, seeking to capitalize on the name his mother made for herself by rolling back environmental regulations as President Reagan’s EPA chief.
Name identification gave Neil a head start in the race, but he cannily used his position on the federal Tenth Circuit Court of Appeals to promote his candidacy. He took the unusual step of concurring in one of his own majority opinions in order to announce how he would rule, should he be promoted to the Supreme
Court. If you do a web search for “Gorsuch” and “elephant in the room,” you’ll see how successful his self-promotion was. It got him noticed in outlets from the New York Times to the National Review.
His big idea was that judges should give themselves a veto over decisions of administrative agencies. A proper understanding of separation of powers, he explained, means concentrating power in the judiciary.
Now that he’s on the Supreme Court, he’s beginning to make good on his campaign promises. An opportunity arose recently with a case involving James Kisor, a Marine who survived Operation Harvest Moon, a 1965 search and destroy mission in Vietnam. In 1982, Kisor applied for disability benefits from the Department of Veterans Affairs but was turned down with a finding that he did not suffer from posttraumatic stress disorder. Twenty-four years later he reapplied. This time the VA acknowledged his longstanding PTSD. The question became whether he should receive benefits from 1982 or only from the date of his re-application in 2006.
The VA has a regulation governing the retroactive grant of benefits following an erroneous initial denial. The critical question is whether, in its initial determination, the agency overlooked “relevant official service records.” If so, the applicant is entitled to retroactive benefits. But the word “relevant” means little in isolation. Relevant to what? Kisor submitted additional records relevant to his participation in Operation Harvest Moon. But the VA said only documents relevant to the diagnosis of PTSD counted, and Kisor couldn’t offer any of those. Accordingly, the VA denied retroactive benefits.
Kisor appealed the denial to the federal courts, all of which framed the legal issue as a question of the level of “deference” judges owe to an agency’s interpretation of its own regulation, providing an excellent example of the way choice of words can govern thought rather than the other way around. The issue arises only when a regulation is truly ambiguous, so that the ordinary tools of legal interpretation provide no clear answer. When that happens, the choice between alternative interpretations boils down to a question of policy. The real legal question is whether judges have the power to substitute their policy choice for that of the agency. Judges’ use of the word “deference” assumes the answer to that question, which is fundamentally dishonest.
Justice Elena Kagan, writing for a 5-4 majority, said that policy decisions should be made by the agency, since that’s why Congress created the agency in the first place. In one respect, it’s a tiny point, affecting only a handful of cases. But it’s an issue that can arise only when a judge’s political ideology clashes with the agency’s policy goals, and that clash is what interests Gorsuch.
Writing a separate opinion, Gorsuch would have given judges the green light to implement their policy choices, but only when they strike down regulations, advancing his (and his mother’s) deregulatory agenda. He failed to command a majority this time, but we can be sure he’ll keep trying.
Gorsuch is like the late Justice Antonin Scalia in his understanding that the concept of a “living Constitution” is every bit as useful to conservatives as to liberals. Power is power. But the similarities between the two end there. Scalia was a forceful and witty writer, while Gorsuch is cutesy and affected. Gorsuch seems incapable of saying anything in a straightforward way. A hallmark of his style is the abrupt transition from the tediously pedantic to the breezily vernacular, but he never seems to get the vernacular right. In the Kisor case, he describes the “deference” doctrine as “on life support.” In the very next sentence, he says it is “in truth, zombified.” That “in truth” is priceless, but really, someone ought to tell the justice that zombies aren’t ICU patients. It’s not “The Night of the Living Critically Ill.”
As for James Kisor, the court failed to resolve his case. Fifty-three and a half years after the last shot in Operation Harvest Moon was fired, his case was sent back to the lower court for another round of briefing.
Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com