When former President Obama left office in January, President Trump inherited a Supreme Court vacancy that he would need to fill. After providing a list of candidates during the campaign, on January 31st President Trump nominated Neil Gorsuch from the 10th U.S. Circuit Court of Appeals in Denver to fill the post. Many conservatives see Gorsuch’s nomination as a home run for the new administration. Former President Obama’s pick of Merrick Garland was passed over without a hearing, causing some Democrats to publically oppose Gorsuch. Though Republicans do hold a majority in the Senate so they will need 61 votes to break any Democratic filibuster. With at least nine Democratic senators up for reelection in states that Trump won, Judge Gorsuch’s confirmation seems likely.
By looking at Judge Gorsuch’s record, we can gain some insight into what his confirmation might mean for HR professionals and employee benefits. In one case, Gorsuch ruled that the Affordable Care Act’s contraception provisions could be considered an unreasonable burden to religious employers and that they would not be required to offer contraception as a part of their medical plan. This case was later affirmed by the Supreme Court in Burwell v. Hobby Lobby Stores.
Gorsuch is also known to be somewhat hostile to what’s known as the Chevron defense. A Supreme Court opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. called for courts to defer to agencies’ rules as long as they are “reasonable interpretations of the law.” If this case were to be overturned, it could open the door for employers to challenge many regulations promulgated by federal agencies, especially as they pertain to the ACA, ERISA, ADA, and HIPAA.
Attorney Collin O’Connor Udell in an interview with SHRM.com said “the bulk of Gorusch’s decisions are in favor of employers.” She argues that he follows a coherent judicial philosophy that lends itself predictability in outcomes, and “that predictably is useful to employers.”