The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The second panel was titled "Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines."
One aspect of almost all constitutional systems is judicial deference, which could be loosely defined as the concept that certain matters are best decided by entities other than the judiciary. While nearly all agree that some level of judicial deference is necessary in our current constitutional system, the extent to which the Judiciary should practice deference remains a highly complex and controversial area of constitutional law. During the past several decades, the rise of the administrative state in the federal government has only added fuel to this ongoing legal debate. On one side, many believe that the administrative state is better equipped to deal with particular matters, because members of the administrative state will have more expertise in specific subject matter areas than federal judges. Many of these proponents of deference support Supreme Court cases that carved out the well-known deference doctrines of Chevron and Auer. On the other hand, skeptics of excessive judicial deference criticize much of the Supreme Court’s related jurisprudence. They instead argue that the increasing number of "cases and controversies" decided by regulators, enforcers, and adjudicative bodies within the administrative state, that are neither elected nor directly subject to the political process, has led to a less democratic form of government in America. Proponents of judicial power taking a less deferential approach believe that a strong doctrine of judicial review is a vital way to ensure that we truly have a government of the people, by the people, and for the people. That said, is there a way to prevent a less-deferential judiciary from becoming overly ambitious?
This distinguished panel of experts will be discussing and debating this controversial and engaging issue. The panel will provide helpful information to attorneys practicing many fields of law, in particular, attorneys working in administrative, constitutional, and regulatory law.
- Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
- Prof. Kristin E. Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School
- Prof. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
- Dean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School
- Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
- Moderator: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Dean Reuter: Welcome to The Federalist Society’s Executive Branch Review Week webinar series. Your telephones and computers have been muted until the question and answer portion of the call. I’ve got a CLE announcement for those of you who are seeking CLE, so please pay careful attention here.
If you’ve registered for CLE, please make sure that you visit our CLE information page, which can be found either on your registration ticket, on the EBR week web page at FedSoc.org, or on the individual event page for this particular panel, also located at FedSoc.org.
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We are welcoming you this morning to our second panel of our webinar series entitled Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society. As you can see before you, if you’ve come in by Zoom, we’re welcoming five speakers, five guest experts, to our call this morning, to our webinar. We’re very pleased to have all of them with us.
We’re going to hear opening remarks from each in turn of about five minutes, but as always, we’ll be looking to the audience for questions, so please have those in mind for when we get that portion of the program. I’m going to introduce them in the order that they’re going to give their opening remarks.
We’ll hear first from the Honorable Beth A. Williams. She’s Assistant Attorney General at the Office of Legal Policy at the U.S. Department of Justice. She’ll be followed by the Honorable Ron Cass. He’s Dean Emeritus, Boston University School of Law, and President of Cass & Associates. Dean Cass will be followed by Professor Sally Katzen. She’s Professor of Practice and Distinguished Scholar in Residence and Co-Director of the Legislative and Regulatory Process Clinic all at the New York University School of Law.
Then, we’ll hear from Professor Kristin E. Hickman. She is the Distinguished McKnight University Professor, the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School. And finally—if he returns to his seat—we’ll hear from Dean Alan B. Morrison, The Lerner Family Associate Dean for Public Interest and Public Service Law, Professorial Lecturer in Law at the George Washington University Law School. With that, Beth Williams, the floor is yours.
Hon. Beth A. Williams: Great. Thanks so much, Dean, and it’s really nice to be here today virtually with all of you. So the panel is considering judicial review and deference doctrines, and I think at first it makes sense to consider where we are post-Kisor and where we are with regard to deference to agency interpretations.
The first question to the panel was who should decide and whether it be purely judicial decision or complete agency deference more or less democratic. Some might argue that they are equally undemocratic when you have a choice between an unelected judge and an unelected bureaucrat, but I will leave that to the scholars to decide. But it’s easier, I think, on the question to reach a more general consensus about the avoidance of accumulation of power in any one branch.
And as Justice Gorsuch was talking about, in his dissent in Kisor, there’s a simple principle that the same people who make the laws should not be the same people interpreting the laws, or as Justice Gorsuch quoted that “The power of making ought to be kept distinct from that of expounding the laws.”
So Kisor attempted to reign in -- and Justice Kagan’s opinion, in Kisor, attempted to reign in, if not eliminate, the power of one branch doing too much. Kisor, as you know, had a three-step analysis for courts who were interpreting agency decision making. The first was that the regulation has to be genuinely ambiguous, and with that, the Court was saying, “No, really, genuinely, you just can’t find ambiguity wherever you want. You have to employ all the canons of statutory interpretation, and only after you do that can you really conclude that it's genuinely ambiguous.” So that’s step one.
Step two, that the agencies interpretation must be reasonable, and they make clear that the agency could fail at that. And finally step three, which I think the most amorphous step, it’s that the court has to engage in an independent inquiry into whether the character and the context of the agency interpretation entitles it to control and wait.
And to help with that analysis, the Court gave out some sub-bullets, some other things to consider. It has to be an agency’s official or authoritative position. The agency’s interpretation has to really depend on its substantive expertise. It has to reflect fair and considered judgment, and then more deference is given to longstanding interpretations: nothing too new and nothing developed for the first time in litigation.
So some critics of Kisor -- and, of course, this wasn’t completely new. It started really with Christopher v. SmithKline Beecham. But some critics of this staff suggested it presents the opportunity for judicial mischief. There’s a lot of factors, and there’s few lines drawn, and obviously, there’s a real bias in favor of older precedents over new interpretations.
And so where does that leave us? Where it leaves us is that administrative agencies still have the “thumb on the scale,” but it has to be a very well-manicured thumb, right? You have to check every box before you get the Auer deference.
Ultimately, what it looks like the Court was doing was trying to make the process of its administrative rule making a better, more democratic process, and this administration has obviously been fully onboard with regulatory reform in that way. I think it's worth just kind of recapping some of what the administration has done to try to make rules better and more lawful.
With Executive Order 13891, what OIRA and what the President did was it followed on, I think, what the Sessions memo did from 2017, 2018, and it said that -- first it said you have to put all your guidance documents on a website, which is just a good government thing to do because it’s not fair for folks who can’t afford big Washington lawyers to have to search around for what the agency’s interpretations of its own rule it is. So it said all of your guidance documents have to be on a website to be operative.
Next, it said notice and comment has to be available and actually performed on significant guidance documents. That’s a great reform too. What that really does is it allows significant guidance documents to get the consideration of the general public, who get to provide notice and comment on it.
Next, it says the public can petition to withdraw or modify guidance documents. And finally, just as the highlight, it says that there has to be clear language that the guidance is not binding, that the agency cannot just make law through guidance documents.
After that, the President issued Executive Order 13892, which applies more directly to affirmative civil enforcement, and it says you can’t use noncompliance with guidance documents as itself a basis for an enforcement action. And that followed on the Brand memo the DOJ did a couple of years ago too.
So these are very important regulatory reforms. They make the regulatory process, the administrative law process, more lawful, more in line with the APA, and I think what that means is that after Kisor and after all of our regulatory reform efforts, our litigants are sure that the administration will always get full judicial deference on all of our positions. So with that, I’ll turn it over to Ron Cass.
Hon. Ron Cass: Thank you. I’m going to talk about three doctrines very quickly. I’m going to talk about Chevron, Kisor, and the Department of Commerce case that was decided this past term. So first of all, picking up what Beth was saying about Kisor, Kisor dealt with the Auer doctrine, which gives deference to agencies on any ambiguous agency regulation. The Auer doctrine didn’t make any sense because the framework allowed an agency to write an ambiguous declaration and to get more leeway from courts than it would if it wrote a clear regulation.
The Auer doctrine came about as an afterthought to the Chevron decision, which gives deference to agencies, but it only gave deference to agencies when there was an ambiguity in the law that looked like it was either implicitly or explicitly delegating discretion to the agency. So the key to Chevron was that courts decide the meaning of the law and that agencies only get deference when they have delegated discretion. So the linchpin is the delegation of discretion.
The change from prior law in Chevron was making it clear that the delegation could be implicit rather than explicit, but basically Chevron did not make a large change in the law. It was not understood at the time to make a large change in the law. There was no dissent, and it wasn’t controversial at the time. When you move from Chevron to Auer, the notion of delegation is an odd one because the agency can’t delegate more authority to itself.
So what the court did, in Kisor, really was, in the majority, pull the focus back to delegation. It pulled the focus back to the degree of discretion given to the agency by the law. That makes perfect sense. You can argue, as the dissenters do, whether it would’ve been cleaner just to abolish the Auer doctrine in its entirety. You can argue about the various standards that the majority is using in the Kisor case to determine the degree of discretion that’s been delegated.
But the notion that delegation is now the linchpin is very important, and Kisor is a big step in that direction. It’s not the only step taken by the Court. Because the Supreme Court, also in a number of recent cases, like the Mayo Foundation case, has made it clear that it is trying to look in Chevron at the degree to which discretion has been given to an agency.
These changes, in the way the Court is looking at Chevron and Auer, are positive changes. They are giving the Court the clear authority to do what courts are supposed to do, which is to interpret the law and giving agencies the authority to determine policy directions to the degree that Congress, by law, has given them discretion over policy decision.
But one area in which the Court seems to be going in the wrong direction is illustrated by the Department of Commerce v. New York case. The case goes through and looks at the question whether the Secretary of Commerce was making the appropriate decision in adding a question on citizenship to the census. A question on citizenship has been asked in almost every census since 1790.
The Court looked at what happened there and said that that the Secretary of Commerce had made a reasonable choice, had made a judgment, had explained the judgment. The judgment was explained sufficiently to satisfy the terms of the law, and then after that, said, “But in this case, we think that what the Secretary of Commerce said the basis, where his decision was, was not the real basis.”
Now, the rationale given by the Secretary was a pretext, and the Court, for the first time, in almost 80 years, went and allowed a lower court to look at the motivation of an administrator to determine the bona fides of the administrator’s decision and did that after saying it was already a rational and rationally-articulated decision.
What Justice Thomas says in his dissent is that this may be a decision that applies only in this case, only in this moment. I think that is probably right. I certainly hope it is right. But if it isn’t, we’ve opened a door to a sort of challenge that I think undermines the agency, undermines the lawmaking process, and changes significantly and unfortunately the role of the court. And with that, let me throw it over to Sally Katzen.
Prof. Sally Katzen: Thank you. And, Dean, I very much appreciate the invitation to join this distinguished panel. The Federalist Society has consistently opened its discussions to people with differing views, which is important and unusual in this day and age. And I’m happy to contribute some contrarian views on the subject of today’s panel, though I agree with much of what Beth and Ron have said.
My starting point is the title of the panel. With respect, I think nothing has been taken away from the judiciary, so there is nothing to restore, and the ship of judicial review and deference is, I think, quite steady as she goes, at least, with respect to Chevron, and Auer, and Kisor. Now, to explain, I guess I want to start with the first principles, which Ron spoke to very briefly on Chevron.
But contrary to views, held by many of the people in The Federalist Society and many in the judiciary, I believe that Chevron is not an abdication or abandonment of judicial power, and it does not deprive the judiciary of its authority or power, as Marshall said, to declare what the law is. Rather, Chevron is a workable balance between the courts’ important role of construing congressional intent, being the faithful agent, to congressional enactments and honoring congressional delegation to agencies tasked with implementing those enactments, appreciating, incorporating the product of the comparative advantages of Executive Branch agencies’ expertise and experience.
Indeed, the value of such expertise is the very reason these agencies were created, and not by the executives to garner power but by the Congress itself in its infinite wisdom. Specifically, recall components of the Chevron doctrine. The first step is to see if Congress has addressed the particular question or issue and spoken clearly about the preferred income. That determination is to be made by the courts alone in their own voice using the traditional tools that courts use for statutory construction.
If a court finds that Congress has spoken, that is the end of the matter. It’s the end of the inquiry, and there’s no deference whatsoever to the agency’s views. That’s not abdication. That’s not impotence. That’s real authority. Similarly, at step two, the agency’s interpretation must be reasonable, as Beth said, and again, that is for the court and only the court to decide. In the court’s view has the agency stayed within the lines drawn by Congress? Again, no abdication, no impotence, real authority.
Now, have the courts sometimes been too deferential to agencies? Have they gone overboard in deferring to agencies? I can’t deny that this has occurred any more than I would deny the courts are sometimes too deferential to the President himself, even when there is no Chevron issue and even when there’s no agency involvement at all. Think about the fields of national security and emergency powers, among others. But even if there are excesses, that is not a reason to condemn the doctrine outright. Judges do tend to err, sometimes. That’s the price we pay and rightly so for an independent judiciary.
Now, just as Chevron does not suppress the judiciary, keep it from its rightful task, so too Chevron provides an avenue for incorporating in the courts’ decision making, the institutional advantages of agencies’ expertise and experience, specialized focus, as well as political accountability, and importantly, national uniformity of policies. Especially, because absence of Supreme Court review—and they hear only relatively few cases each year—you would expect different courts construing the same provision differently.
Now, to be sure, there are cases where the issue is not particularly exotic or highly specialized and where a generalist judge could knowledgably speak to the meaning of a term or phrase, but there are others where the term at issue may be wrapped up in, or reflect, highly technical, scientific, or other matters, where the agency charged, by Congress, with responsibilities for a sector of the economy, or a specific aspect of our society, invariably has specialized knowledge and understanding and regularly works hand in glove with the regulated entities and regulatory beneficiaries.
Consider the facts of Chevron itself. What’s a source? A single smokestack, the whole plant. Would it be preferable or wiser to go with a judgment of the agency that’s charged by Congress with environmental policy or with a judge who looks at the paper the rule has written on and maybe a host of dictionaries? Should the term be construed consistently as the agency would have it or one way in one part of the country and a different way in another part of the country? Or have the whole country governed by the interpretation of the first court to obtain and complete judicial review—a throwback to the panel earlier this morning on nationwide injunctions.
Now, if there were no Chevron doctrine, I suspect courts would likely invent it. Don’t they want to have the most knowledgeable information about what a particular term or clause means by the agency tasked by Congress to implement it? Now, this leads to the criticism of some, that the agency’s proffered interpretation of the governing law may not be the best interpretation.
Best by whose lights? Best to a generalist judge possibly reading this provision for the first time—and I’m familiar with the lengthy, complicated, interconnected statute from which this one provision was taken—or best to the one trained and steeped in the implementation of the particular regulatory regime, based on the basis of dictionary or dictionaries, where there may be multiple definitions of the term, or best by those who have been charged by Congress as their sole and primary mission to implement this law.
Critics of Chevron often cheerfully think of getting rid of this deference for their least favorite agency, EPA, which they can’t abide in the best of times. But overturning Chevron would also affect a host of other agencies that are important advocates for their constituents and regulated entities. Think about the Department of Treasury on banking protocols, or money laundering, or the Department of Commerce on export controls, or the Department of Labor on that lovely statute ERISA.
Now, I should probably move onto defense of Auer and Kisor, but one thing bothers me about this Chevron debate. There was little or no anti-Chevron outcry during Reagan and George Herbert Walker Bush, and Scalia, one their appointees, was in fact consistently, to his death, a fan of Chevron. Then, in the beginning of rumbles by some conservatives during Clinton. Relatively quiet during George W. Bush and then quite vocal during Obama.
I sense a pattern here. Resistance to deference to the views of the agencies when there’s a democrat in the White House, and maybe, I misperceived the source of concern. Maybe, it’s not the occupant of the White House but a general skepticism about or hostility to the regulatory state, especially, when it’s pushing in a direction that some find costly, or burdensome, or anti-libertarian, that drives the enthusiasm for getting rid of Chevron.
But let me appeal to your Federalist Society ruth and the importance of preserving our system of checks and balances. When Congress creates specialized agencies and delegates them particular responsibilities, those agencies are subject to congressional oversight and presidential oversight. That is oversight by the elected heads of the two political branches answerable to the people. It can be argued that there’s something profoundly anti-democratic about courts taking power for themselves to fill in the statutory intricacies rather than inappropriate circumstances deferring to the relevant agencies. Kristin.
Prof. Kristin E. Hickman: Thank you, Sally. So I’m going to leave Auer and Kisor aside for now as a battle that has been fought and, at least, for the time being, I think is going to be over until we see how Kisor plays out. So I’m going to focus on Chevron. I think Ron and Sally and I clearly come at Chevron with very different priors, but we all agree that there are, at least, some cases where Chevron does make sense.
Our current non-delegation jurisprudence allows Congress to give agencies a tremendous amount of policymaking discretion when they implement and administer statutes. Even the alternative approach to non-delegation that Justice Gorsuch advanced in his Gundy dissent last term anticipated that Congress can constitutionally rely on agencies to resolve the details of a statutory scheme. And any regulatory lawyer can tell you that those details often entail significant policy choice.
Justice Scalia in his 1989 Duke Law Journal article recognized that even if a court pursues a very robust application of traditional tools of statutory interpretation, sometimes those tools just do not provide a clear answer. At that inflection point, we realize that what we initially thought might be a matter of interpretation is in fact more a matter of policy choice, and the question, then, is who do we want to make those policy choices—agencies or courts.
There is no one universally correct decider as between agencies and courts. The right answer has to be much more situational. We have to keep in mind that the mere fact that Chevron applies does not mean that the agency wins. Chevron is a standard of review that guides judicial review but does not mandate deference, unless and until its various steps are satisfied and each of those steps represents an exercise in judicial decision making.
If traditional tools of statutory interpretation can get you to a clearly better meaning of the statute, then courts are the better choice to decide the case, constitutionally and normatively. With the benefit of hindsight, obviously, there have been cases in which courts have seemed too quick to conclude that a statute was ambiguous, and to defer uncritically, arguably abdicating their constitutional responsibility.
I’m not entirely sure how much of that was a lack of judicial enquiry as opposed to a mere decision not to include all of that analysis in the opinion, but regardless, we see a lot less of that, I think, in recent years. But meanwhile, if traditional tools can’t get you to a clearly better meaning, as a matter of traditional statutory interpretation, then maybe, we ought to allow agencies to utilize their more specialized expertise and democratic accountability to make the choice, so long as their choices are within the realm of reasonableness.
But that reasonableness inquiry is its own opportunity for judicial evaluation, as we’ve seen in cases like AT&T v. Iowa Utilities Board in 1999, and in Encino Motorcars in 2016, to ensure that agency choices are substantively consistent with statutory meaning and that agencies adequately explain their choices. But it’s also important to think about the type of agency decision making that’s involved.
Since Christensen v. Harris County in 2000 and United States v. Mead Corporation in 2001, the Supreme Court has said that not all agency action that involves statutory interpretation are eligible for Chevron deference. The agency has to exercise delegated power to act with the force of law. That’s another way of ensuring that agencies are acting in that policymaking role before we extend Chevron deference.
And here, let me make one last point—since I think my time is going to start to run short—since the Supreme Court’s 1947 Chenery II decision, the courts have allowed agencies to make policy choices through both rulemaking and adjudication procedures where Congress has given agencies the choice between the two. Hence, in the Mead case, the Court said because agency rulemaking and agency adjudication can carry the force of law, both types of formats ought to be Chevron eligible.
In a forthcoming article that’s posted on SSRN, Erin Neilson and I suggest that maybe we ought to rethink Chevron deference for agency interpretations advanced through adjudication. Rulemaking, by its very nature, is at least quasi-legislative. When agencies act through notice-and-comment rulemaking, the procedures that they have to follow, and the very nature of the enterprise, ensure that a level of democratic accountability and utilization of expertise, through public participation and transparency, as well as the many layers of vetting that those regulations go through. At heart, Chevron is a rulemaking-oriented doctrine, and most of the cases in which the Supreme Court has deferred under Chevron involved notice-and-comment rulemaking. That’s just where Chevron makes the most sense.
By contrast, when agencies act through case-by-case adjudication, no matter how formal their procedures, their decision-making is reactive to the individual facts and circumstances. Fewer people participate or even have the opportunity to participate in the decision-making process. Decision making is much narrower. It isn’t vetted to the same extent as it is in rulemaking. Many, or even most agency adjudications, don’t raise constitutional due process concerns, but Chevron deference in the adjudication context does often raise concern about perceptions of fair process.
The intersection of Chevron and Brand X is particularly pernicious in the context of adjudications, in a way that just isn’t the case with rulemaking. Moreover, the kinds of interpretations that agencies adopt in adjudications, I think are more susceptible of resolution through traditional tools of statutory interpretation. If you remove adjudications from Chevron’s domain, then you remove the temptation that some judges may feel to abdicate the judicial role by relying too heavily on agency expertise.
And here, let me make one final point. I understand and appreciate the perception that we are in a particularly partisan moment, with respect to Chevron, but Chevron has been a controversial doctrine through presidential administrations since the day it was decided. You can attribute the various debates over Chevron and the different shifts with respect to Chevron over time to pure partisan politics, but you can also attribute that shifting, over time, to the very nature of evolution of standards of review, in general, as circumstances in the world changes, the way the agencies operate change, and so on and so forth. And I think that’s as much of what’s going on as partisanship. That’s just my two cents on that point. In any event, with that, let me turn it over to Alan.
Dean Alan B. Morrison: Thank you, Kristin, and thank you, Federalist Society, for inviting me. I always like to come to The Federalist Society events like this because I expect to be the only person who’s going to agree with myself. But I find this time that many people here have said things that I agree with, so maybe, I should protest, Dean, that you got to get some more people who disagree with what I’m going to say here. Sally, in particular, has echoed some of my thoughts, but I agree with much of what Ron, and Kristin, and Beth have all said as well.
So let me talk about Chevron from a higher perspective or, at least, a 30,000-foot perspective. First, I’m a little surprised that so many in The Federalist Society believe that unelected judges should be deciding questions as opposed to elected members of the Executive Branch, who are appointed by the President and accountable to the President. I always thought that The Federalist Society was largely in favor of a strong executive, in part, because it’s easier to change what the prior administration did that have to go back and persuade a court that what the prior administration did and was upheld and what was wrong.
I was also a little surprised that for the first two years of the Trump administration, when both houses of Congress were in control of the Republicans, that no change was made to the Chevron doctrine, even though it’s perfectly clear that Congress has the power to make that change. As Ron said before, Chevron was uncontroversial when it was issued. It was not seen as making any changes, and in fact, that particular case helped the industry, and RDC had prevailed in the lower court because the court had taken the matter de novo and the Supreme Court reversed that.
All that said, it seems to me, there are situations in which Chevron has gone too far. First, in Mead, the Court insisted, quite rightly in my judgment, that Chevron could not be applied automatically, but needed to be applied when there was adequate consideration of the issue. In that case, it seemed perfectly obvious that a very low-level person had not really given the kind of consideration that courts should defer to when they’re thinking about whether this is really the position of the agency.
Chief Justice Roberts, in the Affordable Care Act case, also made an important point that there are some decisions that are just too important to think that Congress intended to defer them to the agency. I’ve always thought that on the question of whether someone was an independent contractor or an employee, an issue that arises both at the NLRB, the Department of Labor, the IRS, many, many places, could that really be a question on which, first, the agency should get substantial deference no matter how hard they ponder it, as opposed to whether this is a kind of a question that Congress thought it was deciding—at least, providing the guidance to everybody else.
For those who taught administrative law and remember the newsboys case involving the Hearst Company in which the agency concluded, and the court upheld, that newsboys were employees. Congress jumped in immediately and said, “No, no, no, no, we don’t want them to be treated that way.” And I take it it’s more a question of deciding the outcome of the particular case. It’s less than that. It’s much more that these are the kind of decisions that Congress ought to make, and more importantly, they ought not to be able to be changed from administration to administration.
So I would urge the Court, in applying Chevron, to look and see whether these are the kind of questions that Congress said, “No, no, we don’t want the agency to decide that. We have done our best to decide the way we think is proper, and we want the Court to try to get that result itself.”
Now, Kristin’s made an interesting suggestion about the NLRB -- about adjudications being taken out of Chevron. And while I haven’t had a chance to think about it in great detail, it does seem to me that she has, in essence, agreed with one of my points just a moment ago, which is the question of adequate consideration. Some adjudications at agencies are the product of simply one party plus the agency deciding something that’s a question of law for everybody going forward.
In that kind of case, one would think “Well, it’s not at all like the rulemaking that Kristin suggested.” But some agency adjudications are different. They invite amicus briefs in when they recognize they’re important questions. They have lots of opportunities for input and it’s an issue, which has been debated. I would view those differently. And so while I’m not prepared to throw the adjudication out of the Chevron wheelhouse, it does seems to me that some adjudications may be deserving of less weight if only we have the parties, but it’s certainly an issue which we ought to think about before.
Now, for those of you who are old enough to remember, and taught administrative law, back in the early 1980s, there was a proposal introduced by Senator Bumpers, called the Bumpers Amendment. I once gave it as a question on my ad law final exam. Bumpers Amendment was very simple. It said that courts shall review all questions of law de novo, and I asked my students to comment on that. And is that what we think ought to be the anti-Chevron outcome? Obviously, it raises an important question as to what is a question of law.
And if you go back and look at Chevron itself, as Sally pointed out a moment ago, it’s not entirely clear that that question was really a question of law, or put another way, that the EPA could have turned it into a question not of law but of implementation by describing what they did as a means of implementing the statutory directives as follows. And then we would have a whole series of questions as to whether something is a question of law, or a question of fact, or a question of discretion of something else.
It seems to be that that’s the wrong way of trying to divide the world. And that Chevron is basically a good doctrine that needs some trimming in at the edges. I would disagree with Ron that the Mayo case is a good example. In Mayo, the Court said to the IRS “You have as much discretion as anybody else, even though you are taking money from taxpayers and you have a single goal of that mind.”
Seems to me that the courts ought to be much more cautious in the tax area, and the same is true with government contractors when the government contractor is told that it is not going to be able to collect some money or has to pay more money back. Because if the government has interpreted the contract statute in a way that favors the government, I get a little nervous about that and wonder whether that’s an appropriate determination in what is, in essence, a judgment that Congress intended to delegate that authority to the administrative agency.
So I’m not claiming that Chevron is really all about technical expertise. I think it is, as Sally pointed out, much more than that. There are lots of policy choices, but they’re policy choices made by agencies that have long familiarities with the industries that they are regulating, or in the case of the NLRB, the relations between management and labor.
And if we recognize that there are policy choices, are we faced with the question of whether unelected bureaucrats, who are subject to the President’s control, to a greater or lesser degree, or courts should be making those policy choices? And it’s not at all clear, to me, that Chevron has gotten it wrong.
So in terms of Chevron, going forward, it does seem, to me, that the courts are in position to make—as they have done over the years—some changes at the margin, but that if any major change in Chevron is going to take place, it is the assumption of Chevron that Congress gave that power to the agencies and took a little power away from the courts, that is Congress that must make that change, and I don’t see that happening anytime soon. I have some other thoughts on the power on the involvement of the courts in these kind of questions, but I’ll save those for the rest, and I’ll turn it back to you, Dean. Thanks.
Dean Reuter: Very good. Thanks, all. I might give folks a chance to respond to something they heard by later presenters. If you’re itching to say more, you can unmute your microphone, and I’ll try and get to you, only if you’re really outraged by something somebody else has said. But let’s open the floor to questions from our registered attendees and callers. If you joined us an attendee using your computer to join the queue, push the button labeled “raise hand” on the control bar at the bottom of your screen. If you dialed in by phone, you need to push *9 on your telephone keypad. *9.
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Kristin, it looks like -- Professor Hickman, you have your microphone unmuted. Let’s go to you. We have several questions and so does Dean Cass, but let’s go to Kristin Hickman quickly, and then Dean Cass, and then we’ll take our first questions of this webinar. Go ahead.
Prof. Kristin E. Hickman: Okay. I’m sorry. I will make this very, very brief. But I simply cannot let tax exceptionalism from judicial deference go uncommented. Having spent the last 15 years writing multiple articles and amicus briefs, challenging tax exceptionalism from general administrative law requirements, doctrines, and norms. Nonsense, Alan. So much of what we do at the IRS and Treasury these days has very little to do with revenue raising. It has much more to do with regulatory and social welfare programs ranging from pension administration, healthcare administration, anti-poverty programs, coronavirus relief. All of those regulations should not be exempt from Chevron deference or any other administrative law doctrine simply because of the fact that they happen to fall in the Internal Revenue Code. For that, see my published works on SSRN, and I’ll leave it at that so we can get to the comments.
Dean Reuter: Dean Cass, do you have a quick comment at this point?
Hon. Ron Cass: Just very quick. Sally mentioned Justice Scalia’s position is a fan of Chevron. He was a fan of original Chevron, which had a serious look by the court at what the law was, and the court making the decision of what the law was, and just deferring to the agency on the policy issues. And he was not a fan of some of the decisions that kind of blended the two and deferred to the agency on interpretations of law. I’ll leave it at that.
Dean Reuter: Professor Katzen, your name’s been invoked here, so let me give you 30 seconds to respond quickly.
Prof. Sally Katzen: Yeah, I don’t think Chevron has changed. Thank you, Dean. I don’t think Chevron has changed, and I think the Chevron that Justice Scalia embraced in 1986, when he went on the Court, is the same Chevron that he embraced until a few years ago. The court does make the cut at what the law -- whether that Congress has spoken to the law, and it makes the cut as to whether the agency has been reasonable, and I would leave it at that.
Dean Reuter: Very good. Let’s turn to our audience now, and we’ll do as many of these questions as possible. I don’t know if I’ve been made a cohost of this call. If our technical support can hear us, it seems like I’m unable to -- okay, now we can allow folks to talk, so let’s take our first call of the day. Go right ahead, caller.
Nathan: Thank you. It’s a great panel. I just had two brief questions. One, could you address whether these deference doctrines clash with the APA, and second, do you believe there’s any due process bias issue with courts systematically favoring one party in litigation over another?
Dean Reuter: It looks like Dean Cass was the first to ring in. Dean Cass, go ahead.
Hon. Ron Cass: Thank you for the question, Nathan. Well, let me just start with the first part. If the court sticks to deciding what the law is, and then decides that the law gives discretion to the agency, there isn’t a conflict with the APA. That’s the court deciding the APA 706(2)(c) question and then using a form of reasonablist review, or the 706(2)(a) question, which is how the agency has exercised its discretion. If the court is actually deferring on the meaning of the law itself, then there’s a conflict with the APA. I’ll also note that Chevron itself wasn’t decided under the APA, but that’s a minor [inaudible 48:20].
Dean Reuter: Professor Hickman and then Professor Katzen.
Prof. Kristin E. Hickman: I’ll simply agree with Ron with respect to the APA. I think it can be reconciled quite easily with 706(2)(a), but leaving that aside, with respect to the due process point, I have not seen -- I recognize the characterization of Chevron as a “thumb on the scale” in favor of one party in litigation over the other. But I have not actually seen anything coherently making an argument under our current due process jurisprudence for how Chevron deference as a -- it’s a standard of review. How Chevron as a standard of review is inconsistent with the Due Process Clause as interpreted either by the Supreme Court, under contemporary doctrine, or even from an originalist perspective.
I do think in some context, as I mentioned, particularly in the agency adjudicatory context, that there is a concern about perceptions of fairness or fair process that you might call small “d” small “p” due process, rather than constitutional big “D” big “P” Due Process Clause concerns. But those are slightly different concerns, but hence why Erin and I proposed getting rid of it for purposes of adjudications.
Dean Reuter: Professor Katzen.
Prof. Sally Katzen: Well, I’m going to agree with Ron and Kristin on what they have said. I know, Dean, this is discouraging to you, but with respect to the APA and the due process, the point I want to make is it’s not just not violative of due process. It doesn’t reflect what’s happening. The charge, the allegation, is that the government is favored. No, the court has to go through step one and step two before it looks to see what interpretation has been given, and then that’s subject to the arbitrary and capricious standard as well.
So it’s not as though the government is sitting there thinking “We’re home run. We’re just going to absolutely win all of the time. The cards are stacked in our favor.” I think it’s a description of the process that does not reflect reality.
And if I may, Dean, while I’m here, there’s another allegation that’s out there and that I want to take head on, as Justice Kagan did in the Kisor opinion and has often been said, with respect to Auer, that if you give deference to the agency in its own interpretation of its own rule, you have created an incentive whereby agencies will issue mush. They will put out ill-formed regulations so that they can later go back, and without notice-and-comment, issue an interpretation, which will receive Auer deference, and again, they would be home free.
That is something which has been bandied about and offered as the raison d’être and the way things are. I’ve spent my life, too much of my life, in the regulatory field, and I have never heard an agency say, “Look, let’s fudge this, and we’ll get them later,” or “We can do it this way and fill in the blanks later.” It takes sometimes years to put together a regulation.
They are not going to leave something on the kitchen floor that they’re going to come back to in an interpretive rule when they’ve gone through all of this effort to promulgate a regulation to achieve what they want to, particularly, in light of the fact that an incoming administration, which may have a different view, can with a stroke of a pen change the interpretation, and they’ve lost it completely. So this is a myth. I might even call it fake news that this incentive is there, powerful, and working. No.
Dean Reuter: Professor Morrison, very quickly. I want to try and get to another question, but I see you’ve unmuted your microphone.
Dean Alan B. Morrison: On the “thumb on the scale,” the due process question, nobody, I would think, would argue that when Congress established the arbitrary capricious standard for review of administrative discretion that that was somehow a “thumb on the scale.” It was a substitutive rule that Congress imposed, and to the extent that Chevron is correct, the doctrine is an interpretation of what Congress wanted. It’s no more “thumb on the scale” than the establishment of the arbitrary and capricious standard than the APA. Thank you.
Dean Reuter: I’m going to take another question here. Stand by. It looks like Gary Lawson with a question. Professor Lawson, go right ahead.
Prof. Gary Lawson: Hi. Thanks so much, Dean. I’m Ron Cass’s worst mistake from when he was dean at Boston University, so I want to come to him with this. As he predicted, this panel has focused on Chevron and Kisor, and he’s right that it’s probably a mistake to let the census case disappear into the background.
Back in the heady new deal days, the court said it wasn’t going to look at the motivations of an agency. But back in the new deal days, they weren’t going to look at the substance of the agency either. They weren’t going to look at the reasoning of the agency. They weren’t going to look at anything at all. Words like arbitrary or capricious meant arbitrary, capricious. They weren’t going to get overturned.
Fast forward to the world of the last half century, where arbitrary or capricious means we’re going to take a close hard look at the agency’s reasoning process and whether they did the studies right, why would there be an exception for the actual rationale that the agency used? Why isn’t the Commerce case a rather straightforward application of the arbitrary or capricious analysis of the last 50 years?
Dean Reuter: Go ahead, Ron. Professor Cass -- Dean Cass, I should say.
Hon. Ron Cass: Well, first of all, I’m always glad to hear from Gary, who is universally a breath of fresh air. I think that the problem in the Department of Commerce case is that when you invite judges to look at the motivation of individual administrators rather than at the rationale they’re articulated, whether the rationale is sufficient, you invite them to engage in an inquiry to which judges are not well suited and which is much more likely to involve some predictions about what people are doing based on the judges own preferences and own ideologies.
In the intervening 78 years, between decisions that we’re willing to look at what administrators did, I think there was plenty to what the courts look at: the substance of what was done, whether it made sense, whether it satisfied the assignment from Congress to the agency, and I think we’re far better off giving judges more concrete and more objectively-based decisions to make rather than more subjective and more individualistic ones.
Dean Reuter: Professors Hickman and Morrison, I’ll let you go next. Professor Hickman.
Prof. Kristin E. Hickman: Very briefly, let me just say that from the work I’ve been doing on the administrative law treatise, I’ve been looking at circuit court opinions talking about Department of Commerce, and there haven’t been a lot. It does not seem, to me, that the circuit courts, at least, have taken the Supreme Court’s invitation in Department of Commerce and run with it in terms of inquiry into the motives of individual agency decision makers. It may ultimately prove to be something like the major questions doctrine where it sits out there as a possibility but perhaps is left to the Supreme Court to apply and doesn’t come up very often.
Dean Reuter: Professor Morrison, I also see that Beth Williams has unmuted her microphone, so we’ll go to her next. Go ahead, Professor Morrison.
Dean Alan B. Morrison: I read the Department of Commerce case a little differently, that it was not so much about motives but that the reason that Secretary Ross gave was laughable on its face and not defensible by anything in the record, and that’s hardly a new revolutionary doctrine. The thing that surprised me about the case was that the Chief Justice made that point at the end after he said, “Well, if you had actually done everything the right way, we could’ve defended it, but you didn’t do the things the right way,” which seem to be an odd way of deciding the question. Beth.
Hon. Beth A. Williams: Yeah. I think that Ron was exactly right to bring this up, and I think the problem with a court looking into motivations is a lot of the problems that you have with a court looking into legislative history. It assumes there is one single unifying motivation for one agency decision, when in fact there’s probably several and many decision makers and different components and lots of input into it. And the idea that you can read the Secretary’s diary and say, “Aha, that’s the motivation,” I think really leads you down a path that we shouldn’t be going down.
Dean Reuter: Let’s try and get one more question, and we might not hear from all of our experts in response, but go ahead, caller. You’re calling in from 202, and your number ends in 644. Go right ahead with your question, please.
Art Saffra (sp): Hi. This is Art Saffra. I’m an attorney here in D.C. There has been a great deal of praise for Chevron and Auer because they accommodate policy decisions and expertise by agencies. Wouldn’t the Skidmore doctrine equally accommodate those concerns?
Dean Reuter: Ron Cass, again, the first to ring in. You’re quick with your button. Go right ahead.
Hon. Ron Cass: I think this is a form of its academic. I thought that the Skidmore doctrine, the way I explain it, is that Chevron is the deference I give to my wife. We do things her way on anything she cares about because that’s what she wants. What I get from wife is Skidmore deference. We do things my way if my way is what she wants.
Skidmore really is just a way of saying, “Listen to the agency. See what it has to say.” I think using the term deference is a misuse of the term when applied to Skidmore. Skidmore simply says, “If the agency persuades you, it persuades you.” So when we talk about Chevron, we’re talking about an area in which the law gives the agency discretion, and the court is deferring to the agency as long as it exercises discretion reasonably, and I think it’s a very different form of judicial accommodation.
Dean Reuter: Professor Hickman.
Prof. Kristin E. Hickman: I will agree with everything Ron just said. The one thing I will also add is that some of Skidmore’s factors are oriented more toward having the court discern whether there are reliance interests that have developed around the agency’s interpretation—if it’s longstanding, if it’s been consistently applied, such that if a judge were to come in with a different interpretation, they might do more harm than good, so maybe the judge ought to be a little bit cautious in deciding to overturn what the agency has done and thereby upset those reliance interests.
I agree with Ron. It’s just a different orientation that contemplates the judge as the primary interpreter of the statute unlike Chevron, and yet, at the same time, cautions the judge “Hey, there are some considerations you might want to take into account before you just go with your best interpretation.”
Dean Reuter: I’m going to ask a final question, and I’m going to come to each of you in the order we had opening remarks, and within that, you can take 15 or 20 seconds to express the final thought. I thought I heard Professor Katzen sort of present this as a binary choice, that you either rely on judges or you rely on agencies, on accountable agencies.
Those are the two choices, and I think Professor Morrison also talked about unelected judges, if those are the right folks to rely on. This is sort of a post-Chevron question, if we ever get there. Is this a binary choice? And if not, Chevron, then what? What does the machine look like? And you should feel free to dodge this question if you’d like and just wrap up as quickly as possible, but in the same order we opened, Beth Williams.
Hon. Beth A. Williams: Well, it’s not a binary choice right now. I think that’s what Kisor told us is that it’s first up to the judiciary, and then only if they feel like it’s really ambiguous and the agency has a reasonable interpretation, then can they defer. But I don’t know. I think that the way that the Founders set this up was that, in general, you want to try to divide power from those who make the law and those who interpret the law, and so the question is less what is more democratic and more what is the best way to disperse power among the branches.
Hon. Ron Cass: Well, I agree with Beth, and I think that post-Chevron would look a lot like original Chevron. It would look like courts doing what they’re told to by the APA and deciding what the law means, and if the law means that an agency has discretion, then deferring to the agency as long as it reasonably exercises that degree of discretion. My view of the reason for getting rid of Chevron isn’t that the original decision was wrong. It’s that it has the terminology has confused people over time into thinking that courts sometimes should defer to agencies in actually interpreting the law in the first instant.
Dean Reuter: Professor Katzen.
Prof. Sally Katzen: I’m not sure what post-Chevron would look like. Would post-Chevron open the door for judges to look and see what’s there and use it to the best of their abilities. We have a raging debate about legislative history right now. That’s there, and sometimes that can be very helpful, and nonetheless, sometimes judges close their eyes to it.
So will post-Chevron be just like original Chevron, as Ron has said, or will it lead some judges to ignore completely what the agency has said, like they ignore legislative history? Sorry to introduce a new topic this late in the game, but your question, I think, is unanswerable otherwise.
Dean Reuter: Well, our next panel, beginning at noon eastern time, is on legislative power, restoring legislative power, so not a bad reference. Professor Hickman, final thought.
Prof. Kristin E. Hickman: Sure. So I’ve argued elsewhere that something that looks like Chevron is inevitable so long as we have the delegations of policymaking discretion that we currently have to agencies. I don’t think for the most part that judges are all that interested in really making the kinds of policy decisions that we leave to agencies. Judges don’t want to come up with national ambient air quality standards.
One of the reasons I think the courts embraced Chevron, in the first instance, was it allowed judges the space to say, “This is a policy question, not an interpretation question.” And thereby explain their deference to the agency in those terms. If you got rid of Chevron, I think you will still have judges deferring to agencies where they feel that a decision is more policy oriented than interpretation. They will just obfuscate the decision making by not saying, “We’re deferring to the agency because this is a question of policy,” but rather they’ll just follow the agency’s statutory reasoning. And as somebody who likes some amount of transparency in judicial decision making, I don’t think that’s a good thing.
Dean Reuter: We’ve blown by our ending time, but you get the final word, Professor Morrison.
Dean Alan B. Morrison: I hope I didn’t say the choice was binary. I don’t think it is. I think we can fix Chevron a little bit, but not get rid of it. Thanks. You muted yourself, Dean.
Dean Reuter: This was nearly flawless. Terrific. I certainly appreciate it. I hope I didn’t put words in the mouths of any of our panelists. It’s great to have you with us. We’ve concluded our second webinar now.
On behalf of The Federalist Society, and personally, I’d like to thank our panelists for joining us. Thanks to the audience as well for dialing in or watching, as the case may be. We will return with a new set of panelists at noon eastern time with a unique link, so don’t use the link you used to access this panel to try and join the new panel. That has been teed up nicely by our experts here. It’s on legislative power, and then on delegation doctrines, so until the next call and that next panel, we are adjourned. Thank you very much, everyone.