While there are many cultural and political causes for the growth of the federal administrative leviathan, it could not have become so powerful without considerable assistance from the Supreme Court. The Court has created, often out of whole cloth, judicial doctrines that magnify the problem: Congress is allowed to pass laws delegating its legislative authority to the executive branch; the executive branch, in turn, is given great leeway to interpret those laws as it sees fit; similar leeway applies even when the executive branch interprets its own regulations.
The result is an interlocking system that grants the executive the powers of all three branches of government. It writes the laws, it interprets the laws, and it executes the law. One of the great projects of America’s originalist, classical-liberal judicial revolution has been to overturn this monstrously unconstitutional construct, and today was supposed to represent the first clear victory in the project — overturning the so-called Auer doctrine, the judge-made rule that requires courts to defer to agency interpretations of their own regulations.
That victory did not happen. Justice Roberts intervened and (mostly) saved Auer. The administrative leviathan suffered only the slightest of flesh wounds.
The case is Kisor v. Wilkie, and the opinion is one of those head-scratching Supreme Court monstrosities with overlapping opinions that will spawn dozens of law-review articles and countless law-professor debates. But the bottom line is clear: Chief Justice John Roberts joined with the Court’s four more progressive justices to save a modified, slightly stripped-down version of Auer. Justice Elena Kagan wrote a plurality opinion, and Justice Roberts — in his separate concurrence — characterized the “prerequisites for, and limitations on Auer deference” like this:
The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise.
In his own opinion, Justice Neil Gorsuch called this Auer “maimed and enfeebled — in truth, zombified.” But as Gorsuch no doubt knows (and intends to convey), zombies are still dangerous. On the silver screen, they eat brains. In courts of law, they eat constitutions.
While Justice Roberts tried mightily to downplay the difference between the weakened version of Auer and Gorsuch’s call to overturn it entirely, the differences are still important. They go to the heart of the constitutional separation of powers. Under the Kagan/Roberts formulation, when an agency meets the new Auer preconditions, deference is still mandatory. Indeed, as Justice Roberts notes, “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.” Under the Gorsuch formulation, courts should consider agency arguments and agency evidence, but they do not have to defer to agency conclusions.
Gorsuch would put litigants on equal legal footing with the agencies they challenge. The Kagan/Roberts majority does not. It grants the executive branch an enduring advantage in the most difficult cases while — as a practical matter —stripping deference only in cases where the outcome is most obvious. As Gorsuch notes, the bottom line is a “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.”
But while originalist lawyers arm themselves to confront zombie Auer, we should prepare for legal battle with sober-minded distress, not abject despair. In his concurrence, Chief Justice Roberts went out of his way to state that “issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” Roberts is broadcasting that his mind is still open about Chevron deference, and in the world of administrative law, Chevron is the Great Satan. Auer is the Little Satan.
Yesterday I described how SCOTUS seems set to revisit and revitalize the nondelegation doctrine, which would curtail the kind of regulations that executive branch agencies could promulgate and would go a long way toward resurrecting Congress’s rightful role as the nation’s true lawmaker.
Auer totters and groans forward, looking for litigants to devour, but there is still reason for hope. For the first time in a generation, Chevron is in danger. For the first time in many generations, delegation is in danger. The administrative state retains its immense power, but its unchecked expansion is facing a serious legal challenge, and that challenge will not end anytime soon.
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