Judge Gorsuch and Same Sex Bathrooms

While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority.  Current case law is mostly bounded in the reality of current politics.  Some conservatives want courts to disrupt the way things currently operate.

Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity.  Congress then delegates responsibility for filling in the details to some department or agency.  To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives).  Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs.   The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.

Current case law supports the ability to operate in this way through three doctrines.  First is the current limited version of the non-delegation doctrine.  Back before the New Deal, the courts regularly struck down regulations on the theory that Congress had improperly delegated legislative authority to the executive branch.  Current law permits such delegation as long as the statute gives sufficient guidance to the administrative agency.  While sufficient is somewhat in the eye of the beholder, most courts only require very broad guidance.

The second doctrine is called Chevron deference (after the case that sets forth the doctrine).  At heart, this doctrine creates a presumption that a regulation is valid.  When it is unclear whether the statute permits the regulation, courts defer to the agencies position that the statute authorizes the regulation.

The third and most controversial doctrine is Auer deference (again named after the governing case).  This doctrine provides that, in most circumstances, a court should follow the interpretation that the agency gives to its own regulation.  Those who oppose this doctrine note that, while a new regulation must go through a strict process before being issued, interpretations of regulations can be changed by each Administration.  Some scholars and attorneys think Auer deference should only be given to interpretations with some history behind them.

According to news reports, Judge Gorsuch has been somewhat hostile in his writings and opinions to these three core doctrines of the modern administrative state.  Under this view of the administrative state, laws should more clearly state the policies being implemented.  Furthermore, under this view, whether regulations comply with the law and the proper interpretation of the regulations are matters of law that can be reviewed by courts without any deference to the administrative agency.  While some regulations may be close calls, it is the job of courts to construe statutes and regulations to resolve ambiguities.  If the statute is ambiguous as to whether it permits a type of regulation, the courts should resolve that ambiguity rather than just upholding the regulation.

Of course, a change to this approach does not necessarily mean good results for conservatives in every case bringing us back to the title.  Currently, there is a pending case before the Supreme Court on school bathrooms and transgender students.  As discussed last year when the case was still working its way to the Supreme Court, this case involves Auer deference.  Back in the 1960s and 1970s, Congress passed several civil rights laws forbidding discrimination based on gender including Title IX barring educational facilities that receive any federal aid from discriminating based on gender.  The Department of Education adopted regulations that allows schools to have separate male and female bathrooms.

The current case assumes the validity of this regulation and only goes to its implementation — how to determine the gender of transgender students.  If you do away with Chevron deference and impose a stricter version of the non-delegation doctrine, however, it would be possible to challenge the regulation in question as not being fully or properly authorized by the statute.  Instead of the Department of Education adopting regulations telling schools how to comply with the requirements of equality and non-discrimination in education, it would be up to the courts alone.  (Of course, one of the reasons for allowing such regulations is to avoid having to litigate each of these issues on a case-by-case basis with different results in different parts of the country.)  It is entirely possible that some courts would not support the concept of separate but equal bathrooms.   I am not saying that these rulings would ultimately stand, but it would only take one ruling in one district to create a serious problem for those designing new school buildings — whether to build traditional bathrooms or to design the school based on the assumption that all bathrooms will have to be unisex bathrooms.

The conservative legal movement simply does not put that much weight into the existing law.  Conservative activist judges are trying to roll back the existing law.  However, some of those doctrines actually protect conservative interests.  Conservatives should be careful that getting what they want on legal doctrine may actually create results that they do not want in individual cases — perhaps even results like requiring schools to have unisex bathrooms.

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