Private: Tough Times for the Anti-Administrativists

Anti-administrativists have not had a good couple of weeks. For the past few years, the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitments of the Founding Fathers. Too often, however, the arguments of the anti-administrativists portray a cartoonish version of modern public administration, an unrestrained Leviathan stomping the land, squashing free enterprise and individual liberty with every step, quavering judges unable or unwilling to get in its way. In three decisions handed down at the end of the Supreme Court’s term — Kisor v Wilkie, Department of Commerce v New York and Gundy v United States — the Empire struck back, wielding doctrinal rigour as a weapon with which to beat away its anti-administrativist opponents and demonstrating in the process that well-developed administrative law principles are capable of restraining governmental officials.

In the broader scheme of things, Kisor was the most important of the cases. For in the dock here was Auer or Seminole Rock deference, the doctrinal rule that agency interpretations of their own regulations can only be set aside on judicial review when “plainly erroneous or inconsistent with the regulation”. The idea that an agency which drafted a regulation must be given significant latitude to interpret the regulation raised the hackles of the late Justice Scalia, and many others besides. These concerns are understandable, inasmuch as administrative law generally does not permit someone to act as judge in their own cause and American administrative law in particular provides that agencies should follow strict procedures (not just announce a view) before claiming that their interpretations carry the “force of law”. Although I think these concerns are overblown, I assumed that Auer deference would fall victim to marauding anti-administrativists.

Not so. In a masterful opinion, Justice Kagan wove the existing strands of caselaw together to fabricate a much more robust doctrine of Auer deference. As Christopher Walker explains:

  1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
  2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
  3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” (some version of the Mead doctrine/Chevron step zero).
  4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise (some version of Skidmore deference).
  5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise (existing Christopher exception to Auer deference).

In dissent, Justice Gorsuch was left flailing, as his spirited and principled constitutional and statutory objections were directed against a version of Auer deference which Justice Kagan had just consigned to history.

What has emerged — Kisor deference — is a more rigorous version of the doctrine giving agencies significant latitude in interpreting their own regulations, evolution rather than revolution. By skilful use of existing caselaw, Justice Kagan effectively neutralised the complaints of the anti-administrativists. Little in Kisor came out of thin air: there is support in the existing caselaw for each of the five steps outlined above; the idea that it is somehow inherent in American administrative law that agencies get a free pass to interpret their own regulations was exposed as fanciful.

That administrative decision-makers do not have a free pass to trample arbitrarily over fundamental rights and norms of good governance is further underscored by the decision in Department of Commerce v New York. At issue here was the Trump Administration’s proposal to add a citizenship question to the census, opposed by states such as New York who fear that non-citizens will refuse to respond to the census, thereby causing immigrants to be undercounted. For the most part, the Administration survived the hard-look review of a majority of the court. But it came unstuck because the explanation it had given for adding the citizenship question was not supported by the evidence in the record. As Chief Justice Roberts explained:

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale — the sole stated reason — seems to have been contrived.

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the discon-nect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation require-ment of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case

There has been debate already in the United States about whether this is a signal (pretext might now be a ground of review of administrative action in all circumstances) or mere noise (this was a very unusual case, with many procedural twists and a voluminous record, a combination unlikely to recur). To an onlooker from elsewhere in the Commonwealth this may look like an “improper purpose” case, with the available evidence casting enough doubt on the decision-maker’s motivations to get over the high threshold for judicial intervention.

The main point for present purposes is that the decision is further evidence that administrative law contains a set of tools which judges can use to restrain government officials. Judicial review is typically quite deferential to administrative agencies, especially on issues of policy, fact or discretion. But the courts do not give agencies a free pass, insisting rather that administrative action is backed up by appropriate evidence and cogent contemporaneous reasons. This is a long way from the anti-administrativists’ caricature of fawning judicial servility to technocratic masters.

Consider, finally, Gundy v United States, a failed non-delegation challenge to a statutory provision, here the Sex Offender Registration and Notification Act, which left it to the Attorney General to “specify the applicability” of the Act’s registration requirements to “sex offenders convicted before” the Act appeared on the statutebook.

I have some sympathy for the view that modern legislatures are too ready to grant broad powers to administrative agencies and other bodies, legislating mush which agencies and courts must attempt to transform into digestible rules and decisions. But I am more sceptical about the desirability of a revival of the notoriously vague non-delegation doctrine, which would give significant authority to judges to condemn legislation as unconstitutional, and seems to me more likely to lead to defensive, prolix and ultimately indecipherable legislative drafting than to a world of clearly written, tightly reasoned and easily understandable statutes.

Gundy again features a full-throated dissent from Justice Gorsuch. Once more, however, Justice Kagan’s opinion (just about) carried the day: she wrote for four of eight judges (Justice Kavanaugh did not sit and Justice Alito concurred in the judgment only), carefully confining the impugned provision, as Mila Sohoni explains:

Gundy had contended that SORNA conferred “unguided,” “unchecked” and “plenary” power upon the attorney general to create, remove or revise registration requirements for pre-act offenders. If read that way, said Kagan, the provision would indeed pose a “nondelegation question.” But Kagan did not read the statute that way. Taking the approach hinted at by her questions at oral argument, Kagan instead construed SORNA “to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible.” She pieced together support for this construction from SORNA’s declaration of purpose (to establish “a comprehensive national system” for sex-offender registration); its definitional provision (defining “sex offender” as an “individual who was convicted of a sex offense”); and its legislative history. Returning to the text of the key phrase, Kagan wrote that “‘[s]pecify the applicability’ … does not mean ‘specify whether to apply SORNA’ to pre-Act offenders at all, even though everything else in the Act commands their coverage. The phrase instead means ‘specify how to apply SORNA’ to pre-Act offenders if transitional difficulties require some delay.”

On Justice Kagan’s interpretation, the provision at issue looks much less fearsome than it might seem at first glance. More generally, reading down delegations of authority which, on their face, seem alarmingly broad, is something judges regularly do to good effect, here as in other cases. This too gives the lie to the cartoonish version of administrative law; judges are hardly powerless in the face of legislative systems failures. Maybe, someday, a statute will again fail the SCOTUS’s non-delegation test, but in the meantime, skilful statutory interpretation should help to hold Leviathan at bay (as in Gundy), as do rigorous administrative law doctrines of deference (Kisor) and hard-look review (Department of Commerce v New York).

This content has been updated on July 1, 2019 at 07:41.