Bureaucrats, Blunted

Parsing the Supreme Court’s opinion in Kisor v. Wilkie is more a game for academics than trench lawyers, and they’ve been kind enough to get right on it. The question was whether Auer, Chevron or Seminole Rock, all of which go to the same basic point of mandatory deference by courts to administrative agencies, would be reversed or survive.

The short answer is that they survived, but in name only. Chris Walker explains at Notice and Comment.

So here’s the new Kisor five-step doctrine for deference to agency regulatory interpretations:

  1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
  2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
  3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” (some version of the Meaddoctrine/Chevron step zero).
  4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise (some version of Skidmore deference).
  5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise (existing Christopher exception to Auer deference).

What the Supreme Court did not do, aside from expressly overruling Auer, et al., is adopt the alternative of Skidmore deference, no greater deference than its persuasive authority warrants.

That is not to say that Auer deference is just the same as the power of persuasion discussed in Skidmore v. Swift & Co., 323 U. S. 134 (1944); there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation under certain conditions. But it is to say that the cases in which Auer deference is warranted largely overlap with the cases in which it would be unreasonable for a court not to be persuaded by an agency’s interpretation of its own regulation.

If this still doesn’t get your juices flowing, Sasha Volokh explains why this matters.

Of course Congress passes the original statute. But when the statute is ambiguous as to a certain issue, there’s a gap. Who fills that gap? If there were no agencies, the gap filler would always be the court. The court would interpret the statute, and that interpretation would be set in stone unless the court overruled its previous precedent (or got overruled by a higher court) or unless Congress changed the statute. Likewise, if Skidmore applies, the court is the ultimate lawmaker; even if it agrees with the agency, the court’s interpretation is set in stone, and the agency can’t change the result.

But if the agency has interpreted the statute and we’re in a Chevron scenario, the gap filler is the agency. That’s because, as the Supreme Court said in Chevron (and has reaffirmed repeatedly), we presume (when Chevron applies) that a statutory ambiguity is an implicit delegation of interpretive authority to the agency. The agency is the lawmaker, because Congress has (implicitly) delegated that sort of authority to it.

Put together, we’re left with Congress passing lazy, platitudinous laws that express some lofty goal (prohibit discrimination, for example), but without any of the nasty details that would allow that lofty goal to happen in real life. An agency is either created or, if it already exists, handed the job of making it happen. It then does so by creating all the rules, regs and, if given deference and gets there before the court’s rule, law necessary to put lofty ideals into action.

When we’re talking about administrative agencies that deal with areas requiring expertise, such as engineering or medical, it makes some sense. After all, judges aren’t engineers. Congress surely isn’t equipped to create the myriad regulations necessary to put into place, and change as science evolves, the oversight of drugs or medical procedures.

But there is another world of administrative law that’s got nothing to do with expertise and is purely political and agenda driven. Congress and the courts have pretended agencies, whether the Departments of Justice or Education, have something about them that’s remotely scientific or expert, but it’s usually just a policy preference wrapped in officious rhetoric. That is what Congress is there to do, not unelected bureaucrats who are handed a blank check by a Congress too lazy or paralyzed to do the hard work of fleshing out what they mean by their lofty laws.

While the Kisor decision doesn’t overrule the precedents of Auer or Chevron, as the concurring (but dissenting, really) opinion of Justice Gorsuch suggests it should.

Formally rejecting Auer would have been a more direct approach, but rigorously applying footnote 9 should lead in most cases to the same general destination. Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here.

While I don’t love the Cubs analogy as much as others, his point that rejecting Auer would have been a more honest, and less convoluted and complex, way to put an end to the inanity of rote deference to the political agendas of petty bureaucrats has merit.

Which raises the secondary, and more “politically” curious aspect of the Kisor ruling. The doctrine of stare decisis is white hot politically, as it raises the fears of a conservative partisan court overruling Roe v. Wade and Casey v. Planned Parenthood. Mind you, it would be totally cool if stare decisis gets trashed to overrule Heller or Citizens United, but let’s not dive down the rabbit hole of inconsistent application.

What the Kisor Court did was not engage in a radical rejection of admin law deference, while tweaking it sufficiently so as to provide the tools to lower courts to no longer be constrained by some petty bureaucrat playing Congress when it comes to determining policy preferences for a nation. It will not be up to lower court judges to decide whether to use their authority to blunt the bureaucrats from overreaching and imposing their vision of administrative Utopia on the nation or to be as lazy as Congress and swallow the administrative agency’s “expertise” hook, line and sinker.

11 thoughts on “Bureaucrats, Blunted

  1. B. McLeod

    Maybe this will help stop future occurrences like the establishment by fiat of Title IX star chambers through the whim of a single fanatic hijacking a single federal agency.

    1. SHG Post author

      It will if court make it so. Will they? Clearly, colleges won’t do it unless compelled to, and even then it’s iffy.

  2. Jim Tyre

    The question was whether Auer, Chevron or Seminole Rock, all of which go to the same basic point of mandatory deference by courts to administrative agencies, would be reversed or survive.

    That’s not quite correct. There’s a doctrinal similarity between all three, but the cert petition in Kisor (plus, of course, what was or wasn’t at issue) put only Auer and Seminole Rock at risk, not Chevron. That’s clear from the first few sentences of the Opinion.

    This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. See Auer v. Robbins, 519 U. S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no.

    Had Kisor been decided differently, Chevron might well have been at risk in a later case. But it wasn’t in this one.

    1. SHG Post author

      Your penultimate sentence is the point. No, Chevron would not have been technically reversed had they reversed Auer, but it would be as good as dead.

      1. Jim Tyre

        I don’t quarrel with that. But you try (and mostly succeed) to make precise statements. And you prefer that your commenters do as well. Your statement was not precise.

        1. B. McLeod

          Where the Hell is Barleycorn, by the way? (Don’t know what made me think of that just now).

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