The Volokh Conspiracy

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Administrative Law

Justice Gorsuch Side-Swipes Chevron

In a dissenting opinion, Justice Gorsuch suggests it's a good thing when parties don't rely upon the Chevron doctrine.


This morning, the Supreme Court released decisions in three cases. Among the three was BNSF Railway Co. v. Loos, a dispute over whether a railroad's payment to an employee for work-time lost due to an on-the-job injury should be treated as taxable compensation. Justice Ginsburg wrote the opinion for the court, endorsing the railroad's view that such a payment is taxable compensation. Justice Gorsuch, joined by Justice Thomas, dissented.

In addition to challenging the majority's interpretation of the relevant statutes, Justice Gorsuch took the opportunity to renew his criticism of the Chevron doctrine, while noting his relief that no justice saw the need to defer to the opinion of the Internal Revenue Service as to how to resolve this case. After explaining why he rejected BNSF Railway's position based upon the relevant statute's text and history, Gorsuch finished off his opinion with the following:

By this point BNSF is left with only one argument, which it treats as no more than a last resort: Chevron deference. In the past, the briefs and oral argument in this case likely would have centered on whether we should defer to the IRS's administrative interpretation of the RRTA. After all, the IRS (at least today) agrees with BNSF's interpretation that "compensation . . . for services rendered" includes damages for personal injuries. And the Chevron doctrine, if it retains any force, would seem to allow BNSF to parlay any statutory ambiguity into a colorable argument for judicial deference to the IRS's view, regardless of the Court's best independent understanding of the law. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Of course, any Chevron analysis here would be complicated by the government's change of heart. For if [Social Security Board v.] Nierotko is as relevant as BNSF contends, then it must also be relevant that, back when Nierotko was decided, the IRS took the view that the term "wages" in the Social Security Act did not include backpay awards for wrongful termination. See 327 U. S., at 366–367. And if "wages" don't include backpay awards for wrongful terminations, it's hard to see how "compensation . . . for services rendered" might include damages for an act of negligence. Still, even with the complications that follow from executive agencies' penchant for changing their views about the law's meaning almost as often as they change administrations, a plea for deference surely would have enjoyed pride of place in BNSF's submission not long ago.

But nothing like that happened here. BNSF devoted scarcely any of its briefing to Chevron. At oral argument, BNSF's lawyer didn't even mention the case until the final seconds—and even then "hate[d] to cite" it. Tr. of Oral Arg. 58. No doubt, BNSF proceeded this way well aware of the mounting criticism of Chevron deference. See, e.g., Pereira v. Sessions, 585 U. S. ___, ___–___ (2018) (Kennedy, J., concurring). And no doubt, too, this is all to the good. Instead of throwing up our hands and letting an interested party—the federal government's executive branch, no less—dictate an inferior interpretation of the law that may be more the product of politics than a scrupulous reading of the statute, the Court today buckles down to its job of saying what the law is in light of its text, its context, and our precedent. Though I may disagree with the result the Court reaches, my colleagues rightly afford the parties before us an independent judicial interpretation of the law. They deserve no less.

Given the Supreme Court's treatment of Chevron last term, this opinion is notable, for Justice Gorsuch is suggesting that advocates may wish to de-emphasize Chevron-based arguments. At the same time, the Court has seemed less interested in relying upon Chevron to decide cases. This poses the possibility that the Court may not get around to overturning or narrowing Chevron. Instead, it could simply stop relying upon it, and hope that agencies get the message.

Two other quick points. First, many groups predicted that Justice Gorsuch would be a predictable "pro-business" vote on the Supreme Court, this is the second time in the past two months that Justice Gorsuch has authored an opinion opposite the position urged by business groups (and, in both cases, he sided with transportation workers). Why ,it is almost as if his decisions are dictated by his view of the law, and not whether business interests "win" or "lose"—which is how it should be.

Second, BNSF Railway was one of two majority opinions by Justice Ginsburg released today. (The other was in Fourth Estate Public Benefit Group v. Whatever one thinks of the opinions, they should quell any fears about Justice Ginsburg's health or vitality, as the Notorious RBG was apparently quite productive while recovering from her recent medical procedures.