The Federal Judiciary and the “Trump Effect”

Collin O’Connor UdellJackson Lewis P.C. | Hartford

collin.udell@jacksonlewis.com | 860-522-0404

Chevron Deference

• Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

• Requires courts to defer to interpretations of statutes made by the government agencies charged with enforcing them, unless such interpretations are unreasonable.

• Deference is not necessary where a statute unambiguously addresses the issue.

Chevron Deference

• But if the statute is ambiguous, the court asks whether the agency’s interpretation of the provision is based on a permissible construction of the statute, a very low hurdle to clear.

• If it is permissible, the court must defer to the agency’s interpretation.

• Thus, the issue of whether or not Chevron deference applies becomes critical in countless labor and employment cases involving the EEOC, the NLRB, and really any agency you can name that enforces a federal statute at issue in the case.

Justice Gorsuch’s intense dislike of Chevron deference is well known.

Believes it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Has called it a “judge-made doctrine for the abdication of the judicial duty.” Gutierrez-Brizuela v. Lynch.

Justices Who May Be Willing To At Least Narrow Chevron Deference Doctrine

Federal Judicial Vacancies

http://www.uscourts.gov/judges-judgeships/judicial-vacancies

List of Federal Appellate Judges Nominated by President Trumpand Confirmed by Senate (as of 11/8/2017)

• Amul Thapar, Sixth Circuit, Nominated March 21, 2017; Confirmed May 25, 2017; vote 52-44

• John K. Bush, Sixth Circuit, Nominated May 8, 2017; Confirmed July 20, 2017; vote 51-47

• Kevin Newsom, Eleventh Circuit, Nominated May 8, 2017; Confirmed August 1, 2017; vote 66-31

• Ralph R. Erickson, Eighth Circuit, Nominated June 7, 2017; Confirmed September 28, 2017; vote 95-1

• Amy Coney Barrett, Seventh Circuit, Nominated May 8, 2017; Confirmed October 31, 2017; vote 55-43

• Joan Larsen, Sixth Circuit, Nominated May 8, 2017; Confirmed November 1, 2017; vote 60-38

• Allison H. Eid, Tenth Circuit, Nominated June 7, 2017; Confirmed November 2, 2017; vote 54-41

• Stephanos Bibas, Third Circuit, Nominated June 19, 2017; Confirmed November 2, 2017; vote 53-43

Caseload of the U.S. Courts of Appeals and U.S. District Courts

http://www.uscourts.gov/statistics-reports/judicial-business-2016

The Federalist Society: Influence on Federal Judicial Selection and Vetting

Most Recent U.S. Court of Appeals Judicial Confirmations

Flip-Flopping Positions in the Agency Realm

Examples of Flip-Flopping Positions

• Whether Title VII prohibits discrimination based on gender identity per se, including transgender status. DOJ reverses prior position and now says no.

• Whether Title VII prohibits discrimination based on sexual orientation (waiting for en banc Zarda decision in 2d Circuit) (DOJ reversed prior position and said no; EEOC said yes).

• Immigrant worker protections – “Dreamers” legal protection (DACA or Deferred Action for Childhood Arrivals) (Trump administration announced pulling plug on program implemented by Obama administration that allowed young immigrants who came to the U.S. as children to apply for deportation relief and work authorization).

• The validity of class action waiver clauses in employer/employee arbitration agreements (waiting for NLRB v. Murphy Oil & companion cases) (DOJ switched sides and ended up arguing against NLRB).

Best Practice: Wait and See