Few constitutional scholars would deny that the Supreme Court has made tragic—even shameful—errors in interpreting the Constitution. Decisions like Dred Scott v. Sanford (1857), Plessy v. Ferguson (1896) and Buck v. Bell (1927) are nearly universally reviled—scholars who agree on little else agree that the Court in these cases got the meaning of the Constitution wrong. If the Court has erred in interpreting the meaning of the Constitution, it must also be possible for the Court to err by promulgating doctrines to guide judicial decision-making which are inconsistent with the Constitution’s meaning.
Yet the Court on Monday denied certiorari in United States Aid Funds v. Bible, a case which would have given the Court an opportunity to evaluate a doctrine that strikes at the core of “the Judicial Power” authorized by Article III and the Constitution’s guarantees of due process of law. In his lone dissent from the Court’s decision to deny review, Justice Clarence Thomas called for the Court to reconsider “Auer deference”—an administrative law doctrine that commands sweeping deference to federal agencies’ interpretations of regulations that the agencies themselves issue. In order to perform their constitutional duty and to safeguard Americans against arbitrary government power—power unconstrained by anything other than the will of those who hold it—the Court must heed Justice Thomas’ call.
In Auer v. Robbins (1997), Justice Antonin Scalia, writing for a unanimous Court, articulated what has since been termed “Auer deference.” (He would later express regret at having done so.) The “ultimate criterion” in interpreting agency regulations, wrote Justice Scalia, “is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” That is to say, judges are to interpret agency regulations to mean what agency officials say that they mean, even if the result is that people seeking to peacefully plan their affairs can only guess at whether they will later face civil or criminal penalties for, say, developing property on land that (unbeknownst to them) contains waters deemed usable as a habitat for migratory birds. In Bible itself, the Seventh U.S. Circuit Court of Appeals deferred to an interpretation that was announced in an amicus brief that the Department of Education filed at the court’s invitation. Such reflexive judicial deference constitutes a standing invitation for special interest groups to pressure agencies to construe regulations in ways that solely benefit them while imposing costs on ordinary citizens, who can engage in few activities that do not fall within the scope of federal regulatory power.
Auer deference is not merely bad policy—it raises profound constitutional concerns. As Justice Thomas explained in a thorough and illuminating concurrence in Perez v. Mortgage Bankers Ass’n (2015), Article III incorporates a concept of judicial duty that can be traced back through centuries of Anglo-American jurisprudence. According to this concept, judges are bound by the nature of their office, as well as by the oath they take to decide cases in accordance with the law of the land, to exercise “independent judgment in interpreting and expounding upon the laws.” Drawing upon the scholarship of Professor Philip Hamburger, whose Law and Judicial Duty remains the authoritative historical investigation of judicial duty (and who joined an amicus brief filed by the Washington Legal Foundation in Bible), Justice Thomas explained that “[i]ndependent judgment require[s] judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources.” “External sources” include “the political branches, the public, or other interested parties.” But Auer deference commands judges to decide cases in accordance with the political branches’ will. Rather than independently seeking to determine “the best meaning of a regulation,” judges applying Auer deference must generally accord “controlling weight” to agency’s interpretations of their regulations. The result is an effective “transfer of the judge’s exercise of independent judgment to the agency,” which is able to promulgate, interpret and enforce regulations that have the force of law. Auer deference is thus an institutionalized abdication of judicial duty that allows officials essentially free reign to impose their will.
By requiring judges to abandon their duty of independent judgment, Auer deference also implicates the Fifth Amendment’s guarantee of due process of law. The Supreme Court has properly recognized that due process of law requires impartial adjudication, free of bias towards either party. In Caperton v. AT Massey Coal Co. (2009), the Court affirmed that the mere potential for biased decision-making in certain circumstances can be constitutionally intolerable. Auer deference requires actual, systematic bias in favor of the most powerful of parties—the federal government—in every case where it applies.
Sadly, Auer deference is not the only judge-made doctrine that requires systematic judicial deference to the mere will of government officials. It is not even the only administrative law doctrine that requires such deference. There is also “Chevron deference,” which requires judges to defer to agencies’ interpretations of statutes that confer authority upon them where the relevant statute is “silent or ambiguous” concerning whether the agency may act—so long as the agency’s interpretation of the statute is not “unreasonable.” But the most dramatic example of systematic judicial deference is the default standard of review in constitutional cases—the so-called “rational-basis test.” The rational-basis test been described by the Court in terms that would give governmental impositions upon all but a handful of rights that the Court has deemed “fundamental” the benefit of an effectively irrebuttable presumption of constitutionality. All of these doctrines are ripe for evaluation concerning their compatibility with judicial duty and due process of law.
In his dissent from the Court’s decision to deny review in Bible, Justice Thomas seemed to stand alone. In truth, he was in distinguished company. His principled stand recalls that of Chief Justice Edward Coke, the great judge of the common law who humbly knelt before James I but would not bow to the monarch’s will. Here, the highest court in the nation has required judges to bow to the will of government officials. In continually calling attention to the deficiencies of a doctrine that the Court formed, fashioned and foisted upon the federal judiciary, Justice Thomas is doing his duty. When an appropriate case next comes to the Court’s attention, his colleagues should do likewise.