Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1
In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality in Gundy v. United States2 concluded that a provision of the Sex Offender Registration and Notification Act (“SORNA”) authorizing the Attorney General to specify the applicability of the Act’s registration requirements and to prescribe rules for registration did not amount to an unconstitutional delegation of legislative power. Three other members of the Court (Justice Gorsuch, Chief Justice Roberts, and Justice Thomas), dissented, emphasizing the Court’s responsibility to determine “whether Congress has unconstitutionally divested itself of its legislative responsibilities.”3 Finding that it did in SORNA’s delegation to the Attorney General, the dissenters characterized the “mutated version of the ‘intelligible principle’” standard that developed after the 1930s and that is the touchstone of the nondelegation doctrine as having “no basis in the original meaning of the Constitution.”4 Justice Alito did not join the dissenters, but he made it clear that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”5 Justice Kavanaugh did not participate in Gundy, but is a potential fifth vote in favor of erecting significant new hurdles to delegation of regulatory authority to agencies.
Less than a week later, the Court handed down its decision in Kisor v. Wilkie.6 The issue in Kisor was whether to overrule Auer v. Robbins7 and Bowles v. Seminole Rock & Sand Co.,8 in which the Court had held that an agency interpretation of its own ambiguous regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”9 Several members of the Court have called for reconsideration of not only Auer/Seminole Rock deference (usually referred to simply as Auer deference), but also of the deference that courts afford to agency interpretations of ambiguous statutes under the iconic Chevron decision.10 Indeed, Justice Scalia, who wrote the majority opinion in Auer, later disavowed it.11
Kisor presented the Court with an opportunity to erase the Auer/Seminole Rock line of precedents. Many thought that the Court’s decision to grant certiorari precisely on the question of whether to do so presaged an affirmative answer. The case involved the Fourth Circuit’s deference to an interpretation by the Board of Veterans’ Appeals of a regulation adopted by the Department of Veterans Affairs (“VA”) that limited eligibility for retroactive benefits covering the period for which the VA had improperly denied benefits. As Justice Kagan noted, however, the factual context had little if any bearing on the Court’s treatment of the viability of Auer. The Court vacated and remanded to the Fourth Circuit to reconsider, using the analytical framework in the majority portion of Justice Kagan’s opinion, whether the regulation is ambiguous and, even if so, whether the Appeals Board’s interpretation of it is entitled to deference.
Justice Kagan defended retention of Auer deference by turning aside Kisor’s (and various amici’s) claims that it violates both the Administrative Procedure Act (“APA”) and separation of powers principles. Auer deference does not conflict with APA section 706’s mandate that reviewing courts “determine the meaning or applicability of the terms of an agency action”12 because courts fulfill that duty by choosing to defer to an agency’s reasonable regulatory interpretation. It does not violate section 553 rulemaking procedures13 because affording deference does not make binding a rule that did not proceed through notice and comment procedures. Justice Kagan rejected the contention that Auer deference encourages agencies to issue vague regulations that they are free to interpret to their advantage later on because “[n]o real evidence—indeed, scarcely an anecdote—backs up the assertion.”14 Auer deference does not contravene separation of powers principles because it does not improperly combine law-making and law-interpreting functions and “courts retain a firm grip on the interpretive function.”15 Finally, Justice Kagan emphasized the importance of adhering to precedent absent a “special justification” for departing from stare decisis, and found none here.16
Auer deference thus survived, but in somewhat muted form. Justice Kagan’s opinion “reinforc[ed] some of the limits inherent” in the Auer doctrine.17 Auer only applies if (1) the regulation being interpreted is “genuinely ambiguous”; (2) a court has so concluded after resorting to “all the standard tools of interpretation”; (3) the agency’s interpretation of the ambiguous regulation is reasonable; and (4) the court’s “independent inquiry” convinces it that “the character and context of the agency interpretation entitles it to controlling weight” (based on “markers” that include whether the interpretation represents the agency’s authoritative or official position, implicates the agency’s substantive expertise, reflects the agency’s “fair and considered judgment,” and does or does not create unfair surprise to regulated entities).18 The resulting inquiry resembles in some respects Chevron’s analysis in that deference is due only if, among other things, the regulation at issue is ambiguous and the agency’s interpretation of it is reasonable.
Despite the Court’s retention of Auer deference, albeit in circumscribed scope, and the plurality’s defense of its legality and policy merit, it is hard not to hear the thunder clouds rumbling not too far in the distance. First, Chief Justice Roberts joined only the portions of Justice Kagan’s opinion spelling out the parameters of Auer deference doctrine and her defense of that doctrine on the basis of stare decisis. He did not join Justice Kagan’s analysis of why Auer deference is consistent with both the APA and separation of powers, which therefore only garnered a plurality of the justices. It is not clear what it would take, if anything, to convince the Chief that stare decisis no longer justifies retention of Auer deference. He also analogized Auer deference to deference to agency statutory interpretations under Skidmore v. Swift & Co.,19 which is generally regarded as weaker than Chevron deference, and certainly weaker than the strong deference regime that has characterized application of Auer.
Second, Justice Gorsuch wrote a strong (if not outraged) concurrence, bemoaning the Court’s failure to “say goodbye to Auer v. Robbins.”20 Pointing out the limited grounds upon which Chief Justice Roberts was unwilling to do so, Justice Gorsuch remarked that the Court’s decision “is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis,”21 which Justice Gorsuch found of questionable applicability. He deemed it doubtful that stare decisis binds the Court to retain interpretive methodologies rather than discrete holdings. In any event, stare decisis provides no basis for following Auer because there is “no persuasive rationale” to support it, the standard has proven to be unworkable, the doctrine is out of step with normal modes of legal interpretation and has generated no serious reliance interests, and “the explosive growth of the administrative state over the last half-century has exacerbated Auer’s potential for mischief.”22 Having dispensed with stare decisis as a supporting rationale, Justice Gorsuch provided lengthy explanations of why the plurality incorrectly dismissed APA statutory and separation of powers concerns. He stated that, with Auer gone, Skidmore deference, which depends on an interpretation’s “power to persuade,” would and should have applied.23 He was somewhat assuaged by the limits on Auer recognized by the majority, which reduces Auer “to the role of a tin god—officious, but ultimately powerless.”24 He also characterized the version of Auer that emerged from Kisor as “maimed and enfeebled—in truth, zombified.”25 Justice Gorsuch urged the Court, when, inevitably, it “will have to pass this way again,” to “stop this business of making up excuses for judges to abdicate their job of interpreting the law.”26
According to the Chief Justice, the difference between the approaches of the majority and Justice Gorsuch’s concurrence is “not as great as it may initially appear.”27 It is likely, however, that if Chief Justice Roberts had joined the Gorsuch bloc rather than the Kagan bloc, the signal sent to the lower courts would have resulted in a greater willingness to rigorously scrutinize agency regulatory interpretations.
But the rumbling of thunder clouds emerges from more than just Justice Gorsuch’s criticisms of Auer deference. Chief Justice Roberts took pains to note that issues surrounding judicial deference to agency interpretations of statutes and their own regulations differ, so that the decision in Kisor does not “touch upon” the status of Chevron deference.28 Justice Gorsuch sees things differently, claiming that “there are serious questions, too, about whether [Chevron] doctrine comports with the APA and the Constitution.”29 Thus, he, at least, seems prepared to take on Chevron. The anti-agency tenor of Justice Gorsuch’s opinion is also hard to miss. The opinion refers three times to agency officials as bureaucrats,30 a term that politicians often use to disparage those officials, and adverts to the danger of their acting on the basis of “shifting whims.”31 Justice Gorsuch takes apparent issue with the “vast power” that “the administrative state wields,”32 as reflected in the “reams of regulations”33 that they issue. Granted, these characterizations are just that, but persistent disparagement of government officials and the dangers posed by the administrative state have the capacity to detract from governmental legitimacy.
Most striking, however, is Justice Gorsuch’s somewhat cryptic claim that “our precedent allowing executive agencies to issue legally binding regulations to govern private conduct may raise constitutional questions of its own.”34 Perhaps Justice Gorsuch simply meant that there are limits to Congress’s ability to delegate rulemaking authority, as he expressed in Gundy. If that claim is meant to call into question the constitutional propriety of the entire practice of agency issuance of legislative rules, however, its acceptance would go well beyond the limits on legislative delegations that were at issue in Gundy. A world in which Congress alone is capable of adopting rules to control threats like those to the public health at which regulations under the federal environmental statutes are targeted would be unrecognizable to anyone currently alive who has practiced administrative law. That would be a world of greatly circumscribed restraints on private conduct that infringes on individual interests in health, safety, and economic security. In short, it would be a world of greatly enhanced threats to safeguards for individuals deemed by Congress to be in need of the government’s protection.
1. See, e.g., Lisa Heinzerling, A Meditation on Juliana v. United States 29 (May 28, 2019) (unpublished manuscript), available at https://ssrn.com/abstract=3395471 (arguing that the majority of current Supreme Court Justices believe that “liberty is threatened . . . when the government pursues regulation to protect people from harm caused by other people, not when it passively lets the harm occur”).
3. Id. at 10 (Gorsuch, J., dissenting).
4. Id. at 17.
5. Id. at 1 (Alito, J., concurring in the judgment).
9. Id. at 414.
11. See Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1213 (2015) (Scalia, J., concurring in the judgment) (stating that “I would  restore the balance originally struck by the [Administrative Procedure Act] with respect to an agency’s interpretation of its own regulations . . . by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct.”); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring) (noting that “while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity”).
13. Id. § 553.
14. Kisor, slip op. at 24.
15. Id. at 25.
16. Id. at 19.
17. Id. at 13.
18. Id. at 11–18 (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).
20. Kisor, slip op. at 1 (Gorsuch, J., concurring in the judgment).
21. Id. at 1–2.
22. Id. at 36–41.
23. Id. at 6.
24. Id. at 42.
25. Id. at 2. See also id. at 3 (referring to Auer as a “paper tiger”).
26. Id. at 2–3.
27. Id. at 1 (Roberts, C.J., concurring in part).
28. Id. at 2. Justice Kavanaugh agreed. Id. at 2 (Kavanaugh, J., concurring in the judgment).
29. Id. at 39 n.114 (Gorsuch, J., concurring in the judgment).
30. Id. at 14, 23 n.76, 31.
31. Id. at 31.
32. Id. at 39 (quoting City of Arlington Tex. v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting)).
33. Id. (quoting Fed. Mar. Comm’n v. S.C. Ports Auth., 535 U. S. 743, 755 (2002)).
34. Id. at 25 n.84.