What Would a Justice Gorsuch Mean for the TCPA?

On January 31, 2017, President Donald J. Trump nominated Neil Gorsuch, a judge on the Tenth Circuit Court of Appeals, to fill a vacancy on the United States Supreme Court created by the death of Justice Antonin Scalia. While Gorsuch must receive Senate confirmation before he can sit on the Supreme Court, he is generally considered to be well qualified. Gorsuch’s nomination could have significant impact on the future of the TCPA.

While Gorsuch has not written any decisions directly reflecting his views of the TCPA, he has written at least one decision that gives important insights into the judicial philosophy he is likely to bring to the high court, a decision that has potential implications for the TCPA.

In Gutierrez-Brizuela v. Lynch (2016), Judge Gorsuch penned a concurring opinion in which he became one of the first judges to openly challenge two judge-made doctrines that compel federal courts to give great deference to decisions made by federal executive branch agencies:

  • Chevron compels a court to defer to an agency’s regulations provided those regulations are a reasonable interpretation of legislation adopted by Congress; and
  • Brand X requires a court to defer to an agency’s change in policy and interpretation of statutes, even if the agency’s new policy conflicts with a prior court opinion, as long as the agency’s new policy is still within the zone interpretations that the agency could have made initially.

Judge Gorsuch asserted that these doctrines conflict with the separation of powers.   He wrote, “[T]he fact is Chevron and Brand X permit 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.” He argued that courts should “limit the ability of an agency to alter and amend existing law” and instead promote certainty in order to allow “citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election.” 

While Judge Gorsuch’s attack on Chevron and Brand X did not directly address it, one would also expect that Judge Gorsuch would level the same critiques at a third type of deference known as Auer deference. Under Auer, a court defers not to an agency’s interpretation of an ambiguous statute passed by Congress, but rather to an agency’s interpretation of its own ambiguous regulation.

Ironically, Auer deference came to prominence from an opinion written by the late Justice Scalia, whose seat Gorsuch has been nominated to fill and to whom he is often compared. Before his passing, however, Justice Scalia raised significant concerns regarding Auer deference. In Decker v. Northwest Environmental Defense Center (2013), Justice Scalia apologized for uncritically accepting that such deference was appropriate, and argued that Auer deference places “the power to write a law and the power to interpret it … in the same hands” and, as such, the doctrine “contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.”

In Perez v. Mortgage Bankers Association (2015), Justice Scalia again called for abandonment of the doctrine. He asserted that Auer deference allows executive agencies to expand their “domain” by “writ[ing] substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment [rulemaking].”

On July 10, 2015, the FCC issued its Omnibus TCPA Declaratory Ruling and Order that, among other things, allows individuals who previously consented to autodialed calls or text messages to revoke their consent through any “reasonable” means. The July 2015 Order has been criticized because it does not provide clear guidance on what constitutes a reasonable opt-out request from a consumer. The FCC’s order is presently on appeal in the D.C. Circuit and a decision is expected at any time.

Whether through appeal of the D.C. Circuit’s decision after it is issued or a subsequent case in which a party faces liability for not honoring an opt-out request, we can expect a future Justice Gorsuch to be uncomfortable giving deference to the FCC on the interpretation of such a vague regulation. Moreover, since Chief Justice Roberts, and Justices Alito and Thomas, have each indicated a willingness to revisit Auer deference, we may well see Gorsuch advocate for a shift in administrative law in order to dissuade federal agencies from continuing to adopt vague rules and regulations that can create shifting sands for the companies that must comply with them. In time then, a Justice Gorsuch could help create an environment in which federal agencies are required to adopt clear and unambiguous rules, which may make it easier for companies to mitigate risk and ensure compliance with the TCPA.