Under Trump, Democrats have new incentive to disarm the bureaucracy

“The government always wins” is only a slight overstatement. When administrative agencies do lose in court, it’s usually on procedural technicalities. When the laws passed by Congress are unclear (which is very often), courts defer to agency interpretation.

Those worried about President Trump’s immigration, surveillance and other actions on civil liberties need to wake up and smell the deference, or it’ll cost them dearly in court.

{mosads}Consider the sad case of Hugo Gutierrez-Brizuela. After entering the U.S. illegally, he applied for legal status — something he was eligible at the time to do under clear court decisions. But the Board of Immigration Appeals changed its interpretation of immigration law to say that a different, conflicting provision applied to Gutierrez-Brizuela. That meant that he was required to spend a ten-year waiting period outside the U.S. Before that, he spent seven years waiting inside the U.S. — all for nothing. Agencies have been getting away with such “reinterpretations” under the Supreme Court’s 1984 Chevron decision and a series of related decisions involving other forms of deference.

Conservatives and libertarians have long objected to giving agencies a blank check as the administrative bureaucracy ballooned under both Democratic and Republican presidents. Now, the question is whether Trump’s election and his actions on immigration will help the Left realize that agency deference hurts them too.

A bill introduced last Congress, the Separation of Powers Restoration Act, would require courts to “decide de novo all relevant questions of law” — meaning, they have to fully examine a law instead of just deferring to the government. SOPRA got 113 Republican House co-sponsors last Congress — and zero Democrats. Same this Congress.

John Conyers, the ranking Democrat on the House Judiciary Committee, has attacked the bill, saying it would slow the regulatory process (by requiring greater evidence), “skew the fact-finding process in favor of those with significant resources,” and “encourage judicial activism.”

In fact, the bill would actually increase transparency and public participation: For instance, Trump officials wouldn’t get deference in re-interpreting Obama-era rules; instead, they’d actually have to go through the public notice-and-comment process to re-write them. And the new rules would have to be a lot more specific — allowing the public more say.

Democrats might have assumed that a Clinton administration would cement Obama rules, but “The Trump administration almost always wins” is now their reality. They’ll figure that out the hard way — by losing in court.

This issue is going to heat up as we approach the the Supreme Court confirmation hearings for Judge Neil Gorsuch, set to start March 20.

Gorsuch has been a blistering critic of deference to agencies. The Republican jurist from Colorado stood up for Gutierrez-Brizuela in a decision recently handed down by the Tenth Circuit Court of Appeals in Denver. He insisted Chevron deference should not apply in the particular circumstances of that odd case — where immigration officials had changed their minds in a way that made Gutierrez-Brizuela ineligible to apply for legal status. But he used the opportunity to denounce Chevron as inconsistent with the Constitution’s separation of powers, which the “founders considered … a vital guard against governmental encroachment on the people’s liberties.” Most importantly, he handily rebutted the kinds of arguments made by Rep. Conyers that the sky would fall without Chevron.

Justice Gorsuch, who is likely to be vigorously opposed by Democrats, might actually be their savior when it comes to checking the Trump administration and the independent regulatory agencies.

If Senate Democrats wise up, they’ll use the Gorsuch hearings to pivot on Chevron and other forms of deference to agencies. They’ll recognize that Gorsuch and SOPRA represent a clean break with the kind of deference to government once championed by Justice Scalia. They’ll rediscover the concerns that Justice Breyer and other Democratic Supreme Court appointees have long expressed: giving unelected bureaucrats free rein in deciding what Congress meant is profoundly un-democratic.

It would take several more new Supreme Court Justices and many years to overturn Chevron and other deference decisions. So everything hinges on whether Congress moves some version of SOPRA. Instead of rejecting the bill outright, Democrats should propose specific amendments to change exactly how SOPRA would work — while still leveling the playing field in court battles with the administrative state.

The window for passing SOPRA is narrow. With a Republican in the White House, Congress’s appetite for checking the Executive might fade quickly. The sooner Democrats in Congress get on board, the better.

Berin Szóka (@BerinSzoka) is president of TechFreedom, a non-partisan think tank dedicated to technology policy.

The views expressed by contributors are their own and are not the views of The Hill.