In each of the two Supreme Court rulings handed down on Monday, Justice Thomas wrote a lengthy and thoughtful opinion concurring in the judgment. In his two opinions, Thomas re-examines first principles of administrative law and invites the Court to reconsider its precedents. I offer here a very brief (and inadequate) overview of Thomas’s opinions.
In Department of Transportation v. Association of American Railroads, Thomas calls for a reinvigoration of the doctrine that Congress may not delegate its legislative power—including its power “to formulate generally applicable rules of private conduct”—to administrative agencies (or to private parties). Under the Court’s current test, Congress may authorize administrative agencies to fashion legally binding rules so long as it sets forth an “intelligible principle” to govern the rulemaker’s discretion. Thomas argues that the “intelligible principle” standard has become “boundless” and is contrary to the original understanding of federal legislative power. He also distinguishes between two types of “conditional legislation”: a permissible type, in which “Congress creates the rule of private conduct, and the President [under the terms of the legislation] makes the factual determination that causes that rule to go into effect” (emphasis in original); and an impermissible type, in which the trigger is a policy determination by the president.
Thomas acknowledges that it “may never be possible perfectly to distinguish between legislative and executive power,” but says that’s no excuse for “look[ing] the other way when the Government asks us to apply a legally binding rule that is not enacted by Congress pursuant to Article I.” He further observes that this robust nondelegation rule “would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable” but accepts that result as putting him “in good company” with the Framers.
In Perez v. Mortgage Bankers Association (which I discussed here), Thomas questions the legitimacy of the line of precedents, dating back to Bowles v. Seminole Rock & Sand Co. (1945), that require judicial deference to administrative interpretations of regulations. Thomas argues that Seminole Rock and the Court’s “repeated extensions of it” are in tension with the Constitution’s “particular blend of separated powers and checks and balances.”
First, Seminole Rock “represents a transfer of judicial power to the Executive Branch” (see slip op. at 8-13), as it “precludes judges from independently determining [the] meaning” of regulations. Second, it “amounts to an erosion of the judicial obligation to serve as a ‘check’ on the political branches” (see slip op. at 14-16). (Both of these concerns would seem to apply with at least as much weight against Chevron deference—judicial deference, that it, to an agency’s interpretation of the statute that it is administering.)