“A new case headed to the Supreme Court may challenge a great deal of deference courts currently afford federal agencies. Andrew Grossman comments.” [Cato Daily Podcast with Caleb Brown, on Kisor v. O’Rourke, earlier on Auer and Seminole Rock deference]
Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]
The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]
“Auer deference,” announced by the U.S. Supreme Court in Auer v. Robbins (1997), requires courts to accord deference to a federal agency’s interpretation of its own statute. The U.S. Department of Education, contradicting some earlier statements, has lately taken the view that “collection costs may not be assessed against [student loan] borrowers who sign rehabilitation agreements,” thus turning unlawful in retrospect thousands of instances in which lenders have done that. The Seventh Circuit has now denied en banc rehearing in the case of Bryana Bible v. United Student Aid Funds, which — invoking Auer deference — let a suit go forward on that theory. Judge Frank Easterbrook, concurring in that denial of rehearing en banc (h/t Ted Frank), noted that Supreme Court justices including Auer’s original author have lately expressed doubts about the doctrine’s ongoing viability. Easterbrook:
…deference has set the stage for a conclusion that conduct, in compliance with agency advice when undertaken (and consistent with the district judge’s view of the regulations’ text), is now a federal felony and the basis of severe penalties in light of the Department’s revised interpretation announced while the case was on appeal.
- Case over harsh IRS handling of lost-in-mail filing reflects worst practices on judicial deference [William Yeatman, Yale Journal on Regulation on Cato certiorari amicus brief in Baldwin v. U.S.] “Congressional Delegation of Regulatory Authority and Time” [Cato podcast with Yeatman and Caleb Brown]
- “Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie” [Paul J. Larkin Jr., Cato Supreme Court Review; earlier on Kisor; Cato podcast with Ilya Shapiro (“Auer deference could become minute deference”), William Yeatman and Caleb Brown]
- “Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine” [Gary Lawson, Cato Supreme Court Review, earlier on Gundy v. U.S. here, here]
- “From Chevron to ‘Consent of the Governed'” [David Schoenbrod, Cato Regulation magazine; Cato panel discussion video with Adam White, David Doniger, Shapiro and Yeatman; Federalist Society panel discussion video with Mark Chenoweth, Doniger, Kristin Hickman, Schoenbrod, Jennifer Mascott]
- “Recognizing the Congressional Review Act’s Full Potential” [Jonathan Wood, Federalist Society, earlier]
- “Idaho is the only state in the nation where the elected representatives of the people must affirmatively act at regular intervals to continue the existence and operation of their regulatory system.” When a lapse in reauthorization threw the regulatory code into question, a remarkable struggle began [J. Kennerly Davis, Federalist Society]
Although the Supreme Court in yesterday’s case of Kisor v. Wilkie did not overturn its Auer deference precedent, as Justice Neil Gorsuch and three colleagues wanted it to do, it did adjust the law in a promising direction. Ilya Shapiro explains:
All nine justices agreed that courts need to work harder to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of deference.
In other words, the Court limited the number of cases where judges defer to agencies, while setting out standards for evaluating those cases that boil down to “when the agency is correct and brings its expertise to bear, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. That sounds like reining in the administrative state!…
At bottom, Kavanaugh makes the perfect analogy that sums up the unanimous Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.” Administrative agencies are now on notice that it’s not “anything goes” when they decide to rewrite their own rules, that judges will hold their feet to the statutory fire.
In short, while Kisor didn’t overturn Auer, it represents a pretty good start at limiting executive-agency overreach….
- U.S. Department of Justice files brief in Kisor v. Wilkie somewhat critical of Auer deference, i.e. of deference to the federal government’s own positions. That’s pretty special, and commendable [William Yeatman, Cato; Jonathan Adler, earlier here and here]
- Parsonage exemption (i.e., favored treatment of allowance for religious housing) does not violate Establishment Clause, rules Seventh Circuit panel [Gaylor v. Mnuchin; background, Kelsey Dallas, Deseret News; earlier]
- Showing middle finger to police officer counts as constitutionally protected speech, and Sixth Circuit says every reasonable officer should know that already [Eugene Volokh]
- Home-share hospitality is here to stay, unless regulators get it very wrong [Federalist Society video with Gwendolyn Smith, Matthew Feeney, and Pete Clarke]
- “Tens of thousands of people in Missouri cannot drive as a result of their licenses being suspended over child support they are unable to pay.” A newly filed lawsuit challenges that practice [Hans Bader]
- Only Congress can make new law, and administration can’t reach desired ban on “bump stock” firearms accessories just by reinterpreting existing federal law [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in D.C. Circuit case of Guedes v. BATFE]
- “”Administrative State Is THE Leading Threat to Civil Liberties of Our Era'”: Nick Gillespie interview with Philip Hamburger at Reason;
- Beyond the deference debates: White House Counsel Don McGahn speaks on Chenery I v. Chenery II, fair notice and retroactivity [Aaron Nielson, Yale Journal on Regulation “Notice and Comment”; related, Josh Blackman] Federalist Society convention videos includes panels on the administrative state and agencies and the judiciary with Steven Calabresi and Gillian Metzger, Congress with C. Boyden Gray and Keith Whittington, the executive branch with Susan Dudley and Neomi Rao, and recent regulatory rollbacks with John Allison and Philip Hamburger;
- Michael Rappoport writing at Law and Liberty lately on such topics as reconfiguring administrative law to promote deregulation, a reformed REINS Act, insisting on stricter separation of powers within agencies including adjudication, and deference doctrines including Chevron (contra preferentum? No thanks), Auer (shares Chevron’s faults) and Skidmore (demonstrations of agency expertise). And Michael Greve on some historical and comparative-law perspectives;
- CSAS (George Mason/Scalia Law) December conference on judicial review of agency action with papers by Jerry Ellig and Reeve Bull, Kristin Hickman and Mark Thomson, Aaron Nielson, Nicholas Parrillo, and Jeffrey Pojanowski, full conference and video links with Andrew Grossman, Adam White, and many others;
- Manipulable: recent Section 8 housing case points up “how easily courts can side-step Auer deference if they have a mind to do so” [Rick Hills, PrawfsBlawg]
- Digital Realty v. Somers, on SEC definition of Dodd-Frank whistleblower, could give Justice Gorsuch an opening to strike blow against excessive judicial deference to agencies [Ilya Shapiro]
The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]
[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.
More on Auer deference here, etc.
Government agencies can get an unfair edge in disputes with the regulated public if they can write ambiguity into their rules, develop interpretations that open up further ambiguities to suit their needs, and then when a dispute arises gain deference from courts on these doubtful interpretations-piled-upon-interpretations. In Foster v. Vilsack, the issue was whether a “prairie pothole” depression on a South Dakota farm should be deemed a federally protected wetland, denying the Fosters productive use of the land; the U.S. Department of Agriculture adopted what seemed a strained interpretation enabling it to so designate the land, and the Eighth Circuit deferred to it.
The decision actually afforded the agency “second-level” Auer deference, deferring to an interpretation of a vaguely written agency circular that interprets a vague regulation that in turn interprets a vague statute–all to get to a definition of “local area” that is nothing close to a natural and reasonable interpretation of that term.
Cato has filed an amicus brief on behalf of the farm family’s request for certiorari, urging the Supreme Court to revisit the Auer doctrine in administrative law at least to prevent its irrational extension:
Second-level Auer deference also undermines the rule of lenity — a traditional rule of interpretation stating that ambiguity in criminal statutes must be resolved in favor of the defendant — even more than first-level Auer deference already does. It effectively allows agencies to create new crimes (again without notice to the public) by doing as little as reinterpreting a footnote in a memo. Cato urges the Supreme Court take the case so that it may rein in the expansion of Auer deference and make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.