Calling it “an elephant in the room,” he went on to say that in the opinion, Chevron and a similar case “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. Maybe the time has come to face the behemoth.” Federal regulations have gotten so complicated that it takes “an army of perfumed lawyers and lobbyists” to keep up, he wrote.
David Levine, a principal at Groom Law Group, a Washington firm specializing in ERISA, said that “in the benefit context, given the significant number of administrative rules and interpretations, including enforcement actions by regulators, such a change could make efforts to challenge agency actions and rules more likely to succeed.”
Still, said Nancy Ross, a Chicago-based partner at law firm Mayer Brown, while Mr. Gorsuch will be wary of regulatory burdens on employers, “he will not uniformly side with the employer or plan sponsor.”
Billy Corriher, a legal expert with the progressive advocacy group Center for American Progress in Washington, worries that if confirmed, Mr. Gorsuch's position on Chevron “would upset the long-standing separation of power between the judiciary and the political branches of government,” and give unelected judges more power to strike down regulations.
Noting that Mr. Gorsuch has criticized using litigation for social agendas, “he seems to be fine with corporations using lawsuits to strike down laws if they do not want to comply,” Mr. Corriher said.
Mr. Gorsuch has often criticized the proliferation of securities lawsuits in his judicial opinions and in legal writings from his time in private practice. An August 2014 opinion from the appeals court bench made it harder to bring securities cases about misleading statements by issuers. In MHC Mutual Conversion Fund LP et al. vs. Sandler O'Neill & Partners LP et al., investors were rebuffed in seeking to establish liability by United Western Bancorp Inc. over projections in a 2009 stock offering.
“Establishing that an opinion about the future failed to pan out in the end may go some way to meeting that standard (for pursuing such cases) but it doesn't go all the way,” wrote Mr. Gorsuch. “To establish liability for an opinion about the future, more is required.”
As a partner in the Washington office of law firm Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC until 2005, Mr. Gorsuch served a diverse clientele, including the U.S. Chamber of Commerce, on whose behalf he filed two briefs arguing to make it harder to file securities class actions. Such cases, he complained in a 2005 paper, largely lead to settlements that enrich lawyers as much, or more, than investors.
In that paper written for the Washington Legal Foundation while he was at the law firm, he argued that while securities class actions have offered some social benefits, “experience has shown that, like many other well-intended social experiments, they are not exempt from the law of unintended consequences, having brought with them vast social costs never imagined by their early promoters. Today, economic incentives unique to securities litigation encourage class-action lawyers to bring meritless claims and prompt corporate defendants to pay dearly to settle such claims. These same incentives operate to encourage significant attorneys' fee awards even in cases where class members receive little meaningful compensation. And the problem is widespread,” argued Mr. Gorsuch, who recommended a bidding process to reduce lawyers' fees, and more enforcement by courts of securities law restrictions on “professional plaintiffs” that would help institutional investors “from becoming spread too thin.”
