Symposium: Why Kisor is a case to watch

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center.

There are lots of Supreme Court cases that don’t make big headlines. But that doesn’t mean they aren’t important. A case the court will hear later this term is a prime example. In Kisor v. Wilkie, the Supreme Court will consider whether to overrule its own long-standing precedents that hold that courts should defer to agencies’ reasonable interpretations of their own regulations. This case is important in its own right. But it’s also significant because it is part of a broader conservative attack on the administrative state, and the consequences of that attack, if successful, could be tremendous.

The idea that courts should defer to administrative agencies’ reasonable interpretations of their own regulations is hardly new. As far back as 1945 in Bowles v. Seminole Rock & Sand Co., the Supreme Court held that if the “meaning of [an administrative regulation] is in doubt,” “a court must necessarily look to the administrative construction of the regulation.” The “administrative interpretation,” the court went on to explain, “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” The court has repeatedly reaffirmed that principle in the years since, most famously in the case Auer v. Robbins, in which Justice Antonin Scalia wrote for a unanimous court that the secretary of labor’s interpretation of his own regulations is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

Yet despite the rich pedigree of this doctrine, it is now (and has been for some time) under attack, including by Supreme Court justices. Justice Clarence Thomas, for example, in a concurrence, stated that “Seminole Rock was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns.” In a different case, Chief Justice John Roberts, joined by Justice Samuel Alito, noted in a concurrence that “[t]he bar is now aware that there is some interest in reconsidering those cases.” Indeed, by the time he died, even Scalia had turned on the decision he authored, arguing in a separate opinion in a case that Auer deference violates “fundamental principles of separation of powers.”

These constitutional attacks on Auer miss the mark for many reasons. Nothing in the Constitution’s text, history or values prohibits courts from deferring to agencies’ interpretations of their own regulations. Indeed, as others have argued, the doctrine may well advance constitutional values, such as “due process, fair notice and rule of law norms,” by reducing the risk that agencies will “choose to issue their regulatory interpretations through ad hoc administrative adjudication,” and “constitutional supervisory structures,” by “support[ing] top-down oversight and control of agency personnel.”

But I want to focus here on how these attacks on Auer are part of a broader attack on the administrative state — and what the implications of those attacks, if successful, could be, for both the Supreme Court and the country. After all, as the court takes up Auer this term, two other major legal issues — both involving long-standing Supreme Court precedents — may not be far behind. First, in a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council, the Supreme Court held that when a statute is ambiguous, courts must defer to a reasonable interpretation of that statute by the agency charged with administering it. Recognizing the expertise and flexibility that administrative agencies can bring to policymaking, Congress has often delegated authority to expert agencies to determine how best to implement the laws it passes.

Second, in a 1935 Supreme Court case called Humphrey’s Executor v. United States, the Supreme Court held that Congress may shield the heads of regulatory agencies from removal at will, and the court has reaffirmed that decision many times since then. Consistent with this precedent, Congress has repeatedly chosen to do so, recognizing that in some cases agencies will be able to function more effectively if they have some degree of independence from the president. Recently, for example, Congress decided to make the head of the Consumer Financial Protection Bureau removable only for cause. Congress concluded that this structure would enable the new agency to best do its job of protecting Americans from harmful practices of the financial services industry and preventing another financial crisis like the one that shook the nation in 2008.

Yet both of these doctrines — just like Auer — are now under attack, including by the two newest members of the Supreme Court. Before joining the court, then-Judge Neil Gorsuch made no secret of his disdain for Chevron. In one opinion, he wrote that Chevron has permitted “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Indeed, when Gorsuch was nominated, the business community rejoiced, citing as one reason his “willingness to challenge the Chevron doctrine.” And before joining the court, then-Judge Brett Kavanaugh too made his contempt for Chevron clear, calling it “an atextual invention by courts” that is “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” And he wrote an opinion holding that the leadership structure of the CFPB is unconstitutional. When the full U.S. Court of Appeals for the District of Columbia Circuit subsequently rejected that conclusion, Kavanaugh wrote a dissent, calling into question Humphrey’s Executor and thus the constitutionality of all independent agencies.

This multi-faceted attack on the administrative state is deeply troubling for a number of reasons. First, it is at odds with constitutional text, history and values. While each of these doctrines raises different issues, the assaults on them seem motivated by a common feature: a belief that the modern administrative state would somehow be anathema to the Constitution’s Framers. As Roberts once wrote in a dissent, “[t]he Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. … ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’”

Yet when the Framers set up our structure of government, they were well aware that the new president would not be able to “take Care that the Laws be faithfully executed” without the assistance of subordinate Executive Branch officials (“Officers of the United States”) and “Departments” to assist him in his responsibilities. But they left unspecified what those departments would look like or who those officers would be, leaving Congress with great discretion to determine how best to structure the federal government. And Congress has long recognized that administrative agencies should play a critical role in the implementation of federal law. As Professor Jerry Mashaw has written, “[f]rom the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and provided for judicial review of administrative action.” This history is at odds with contemporary notions that the administrative state — and concomitantly any Supreme Court opinions that empower the administrative state — should be viewed with great skepticism and hostility.

Second, if these attacks on the administrative state were to prove successful, the consequences for the American people could be significant. After all, doctrines of administrative deference have long played an important role in the federal government’s ability to regulate big businesses and protect consumers, the environment, workers and more. And independent agencies serve a critical role in regulating businesses and marketplaces because they are able to enact reasonable business regulations without political interference or the undue influence of corporate interests. In sum, although people may not pay much attention to Supreme Court cases about agency deference or independence, the decisions the Supreme Court makes in those cases could affect literally every American.

Third, and finally, how the Supreme Court handles these attacks on the administrative state could also have real consequences for the institutional legitimacy of the court. Whether it’s Auer, Chevron or Humphrey’s Executor, these are long-standing precedents of the court. Although it is sometimes appropriate for the court to overrule its own precedents, it must have good reasons, as the court itself has noted time and time again. Earlier this term, Kavanaugh put it like this: “[W]hen are we going to upset that stability, when are we going to depart from the humility of respecting precedent and overrule [a doctrine]?” If it appears that the court is overruling precedent simply because of the policy preferences of the justices, that will do real damage to the notion that the justices are not simply politicians in robes.

People may not be paying a lot of attention to Kisor, but they should be. It’s an incredibly important case in its own right — and because of the larger attack on the administrative state of which it’s a part.

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Past cases linked to in this post:

Auer v. Robbins, 519 U.S. 452 (1997)
Bowles v. Seminole Rock Co., 325 U.S. 410 (1945)
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984)
Humphrey’s Executor v. U.S., 295 U.S. 602 (1935)