Symposium: Kisor v. Wilkie – A swing and a miss

Eric S. Schmitt is the Attorney General of Missouri.

Kisor v. Wilkie missed a golden opportunity to restore the role of federalism and the separation of powers in federal administrative law. Where the federal courts have whiffed, state courts should step up to the plate. After Kisor, state courts and state attorneys general should work to restore the place of these fundamental principles to agency-deference doctrines under state law.

In recent months, I have joined numerous state attorneys general in calling on the Supreme Court to reconsider federal agency-deference doctrines, including Chevron v. Natural Resources Defense Council and Auer v. Robbins. The application of these doctrines violates principles of federalism by permitting unelected federal bureaucrats to pre-empt state laws, outside the process of bicameralism and presentment prescribed by the U.S. Constitution. And these doctrines undermine the separation of powers by granting binding interpretive authority to the executive branch. Though Kisor’s plurality opinion assures us that Auer deference promotes democratic accountability by granting to executive-branch officials, instead of Article III judges, final authority over the meaning of ambiguous regulations, in fact the opposite is true. In our constitutional structure, the separation of powers—not the federal bureaucracy—provides the fundamental safeguard for both democratic accountability and individual liberty. As Justice Neil Gorsuch’s opinion observes, “[t]he founders afforded these extraordinary powers and protections not for the comfort of judges, but so that an independent judiciary could better guard the people from the arbitrary use of governmental power.”  This echoes Justice Antonin Scalia’s statement in Morrison v. Olson, quoting the Massachusetts Constitution: “The executive shall never exercise the legislative and judicial powers, or either of them … to the end it may be a government of laws and not of men.”

To be sure, the Kisor majority sought to “reinforce the limits” and “cabin[] … the scope” of Auer deference to make it more respectful of these fundamental principles, and all justices expressed the belief that Auer now means a whole lot less than it did before. But the cure for Auer’s overreach may turn out to be almost as bad as the disease. The majority limits Auer by adopting a series of exceptions to Auer that are at least as ambiguous as any regulation to which Auer might apply. “Whether to apply [Auer] depends on a range of considerations,” we are told, and “the limits of Auer deference are not susceptible to any rigid test.” In determining whether Auer applies at all, a court must consider “the character and context of the agency interpretation.” This inquiry “does not reduce to any exhaustive test,” but does rely on “some especially important markers.”

To be entitled to deference, we are told, the agency’s interpretation of its own regulation must be (1) “authoritative,” rather than a “more ad hoc statement not reflecting the agency’s views”—which does not require the agency interpretation to “come[] from, or [be] even in the name of, the Secretary or his chief advisers,” but must “at least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context.” In other words, an “authoritative” interpretation can be recognized from the fact that it issued from those who are “understood to make authoritative policy.” As Scalia once wrote, this is “turtles all the way down.”

In addition, (2) the agency’s interpretation must “implicate its substantive expertise,” and may not address an “interpretive issue[]” that “may fall more naturally into a judge’s bailiwick,” or fall within another agency’s “comparative expertise.”  Furthermore, (3) the interpretation must reflect a “fair and considered judgment”— “unfair” and unconsidered” judgments include those based on “post hoc rationalization[s]” and “convenient litigating position[s],” but we are not told what else.

Moreover, (4) Auer deference does not apply “to a new interpretation … that creates ‘unfair surprise’ to regulated parties”—instead, the agency’s interpretation must have provided “fair warning” to the regulated public.  Finally, (5) we are reminded in a footnote, citing Gonzales v. Oregon, that Auer deference does not apply “when an agency interprets a rule that parrots the statutory text.” But the question whether a regulation merely “parrots” a statute, or genuinely resolves ambiguity within the statute, can itself be a vexing question, as Scalia’s dissent in Gonzales v. Oregon pointed out—by disputing that the regulation at issue ran “afowl (so to speak)” of the Supreme Court’s newly minted “anti-parroting canon.”

Each of these exceptions is sure to generate voluminous “threshold” litigation over whether Auer applies at all, similar to the “threshold” litigation that already bedevils the application of Chevron deference. Each of the exceptions is at least as vaguely defined, indeterminate, and ambiguous as any ambiguous regulation whose meaning might be resolved by Auer.

And all this indeterminacy—and endless future litigation—is unnecessary.  Virtually all the putative benefits of Auer deference touted by the plurality opinion—such as giving weight to agency expertise, promoting uniformity and consistency and permitting political actors to resolve policy debates—could be just as readily achieved by applying the milder form of deference prescribed in Skidmore v. Swift to agency interpretations in truly difficult cases. For example, the plurality’s much-touted “moiety” example undoubtedly could be resolved by giving persuasive weight to the FDA’s interpretation of “moiety”—i.e., considering “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”  The same is true of the question whether olive tapenade constitutes a “liquid” or “gel”—the TSA’s interpretation on such a question may be granted persuasive weight, without conferring on the agency the binding interpretive authority that, under our system of separated powers, properly belongs to Article III courts. As Gorsuch’s opinion states, “if the rule of law means anything, it means that we are governed by the public meaning of the words found in statutes and regulations, not by their authors’ private intentions.”

The Kisor majority’s failure to fully respect principles of federalism and the separation of powers issues a call to action to state courts and state attorneys general to clarify agency-deference doctrines at the state level.  State agencies, like federal agencies, conduct a massive amount of rulemaking with a huge impact on the regulated public. The principles of separation of powers, constitutional structure and democratic accountability are no less important at the state level than at the federal level. But agency-deference doctrines under state law tend to be less systematic than under federal law. State courts frequently take an ad hoc approach to administrative deference, and they frequently cite federal precedents on administrative deference reflexively, without careful consideration.

Kisor calls for state courts to take a more considered approach. State courts should not reflexively adopt Kisor, but should carefully consider whether Kisor’s splintered opinions and multi-factored tests properly safeguard constitutional structure and the separation of powers at the state level. In my own state of Missouri, there is recent, healthy trend in appellate opinions away from reflexively citing Chevron and similar cases, and toward a more critical and skeptical approach to federal agency-deference doctrines. This trend should continue. State courts should be particularly critical and skeptical of the wholesale adoption of Kisor.

On this point, state attorneys general must play a leading role. State attorneys general are typically entrusted both with protecting fundamental constitutional values in each state, and with directing litigation on behalf of state agencies. The latter role should not blind state attorneys general to the former. State attorneys general should be especially sensitive to the risk that endorsing the uncritical application of agency-deference doctrines may undermine fundamental constitutional values. State attorneys general should urge state courts to conduct their own careful consideration of agency-deference doctrines in light of state constitutional values, instead of reflexively adopting federal values. And state attorneys general should counsel their state-agency clients to conduct state rulemaking in a manner that respects democratic accountability and the separation of powers—following Gorsuch’s observation that “a basic premise of our legal order” is that “we are governed not by the shifting whims of politicians and bureaucrats, but by written laws whose meaning is fixed and ascertainable.”

As Gorsuch’s opinion points out, Kisor’s narrowing of Auer, though deeply flawed, presents a “silver lining.” And there is another “silver lining” here. The separate opinions of both Chief Justice John Roberts and Justice Brett Kavanaugh pointedly remind their readers that the questions surrounding Auer deference “are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” In other words, both opinions emphasize that Kisor does not foreclose the court from reconsidering Chevron deference, as Justice Anthony Kennedy recently urged. The project of reconsidering Chevron is still on the table.

Finally, Kavanaugh’s opinion provides one of the most persuasive baseball analogies in American jurisprudence: “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.” As a die-hard fan of the St. Louis Cardinals, I could not agree more.