Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain terms vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States”1×1. U.S. Const. art. I, § 1. and forces Congress to exercise those “Powers” through an elaborate process of enacting the same legal text in two legislative chambers and presenting the passed bill to the President for approval.2×2. Id. art. I, § 7 (requiring bicameralism and presentment); see, e.g., Loving v. United States, 517 U.S. 748, 757–58 (1996); INS v. Chadha, 462 U.S. 919, 946–51 (1983). But in the modern state, and for quite some time, Congress has delegated authority to write rules and regulations with the status of laws to administrative agencies situated within the executive branch.3×3. See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255–56 (2001) (describing Congress’s broad delegations of legislative authority to agencies since the beginning of the twentieth century). In turn, those agencies have written rules and regulations affecting the private lives of citizens, and litigants have sometimes challenged in court an agency’s authority to promulgate, and to interpret, a rule. Two critical issues that arise out of this arrangement are the limits, if any, on Congress’s power to delegate such rulemaking authority to agencies and the interpretive methodology that courts ought to apply when a private party disagrees with the executive branch’s interpretation of one of those rules.
This past Term, two cases appeared poised to break substantial new ground on these two issues. Gundy v. United States4×4. 139 S. Ct. 2116 (2019). addressed the question whether the Sex Offender Registration and Notification Act’s5×5. 34 U.S.C. §§ 20901–20962 (Supp. V 2017). (SORNA) conferral of authority on the Attorney General to apply its registration requirement retroactively violated the limits that Article I’s vesting of “legislative Power” in Congress places on Congress’s ability to delegate elsewhere.6×6. Gundy, 139 S. Ct. at 2121 (plurality opinion). The Supreme Court has often declared that Congress cannot validly delegate its “legislative Power” to the executive branch,7×7. See, e.g., Mistretta v. United States, 488 U.S. 361, 371–72 (1989) (“[W]e long have insisted that ‘the integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.” (quoting Field v. Clark, 143 U.S. 649, 692 (1892))). but (save for two exceptions, both of which occurred in 19358×8. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Pan. Ref. Co. v. Ryan, 293 U.S. 388 (1935). ) has not used the nondelegation doctrine to find a statute unconstitutional.
Kisor v. Wilkie9×9. 139 S. Ct. 2400 (2019). addressed the proper interpretive method that courts should use to construe rules promulgated by agencies pursuant to their delegated authority.10×10. Id. at 2408. Since its famous 1984 opinion establishing the doctrine now known as “Chevron11×11. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). deference,” the Supreme Court has generally addressed the question of statutory interpretation by asking whether Congress, in the enacted legal text, “directly spoke to the precise question at issue”12×12. Id. at 842. — and if Congress did not, by deferring to an administrative agency’s “reasonable” construction in the face of statutory silence or ambiguity.13×13. Id. at 844; see id. at 842–44. But the seeming simplicity of this two-step test has been destabilized in recent years, as the Court has modified and qualified the parameters of Chevron’s applicability.14×14. See, e.g., King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015); United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); see also Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006). Where Chevron does not apply in statutory interpretation cases, the Court defaults to “Skidmore15×15. Skidmore v. Swift & Co., 323 U.S. 134 (1944). deference,” named after another precedent that parcels out “deference” to administrative agencies based on a multifactor, rather than two-step, approach.16×16. Id. at 140. Were that not enough complication, the Court has developed, in parallel, an entirely separate doctrine to address the weight that courts must give to agency interpretation of agency regulations, sometimes named “Seminole Rock17×17. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). deference” after a 1945 precedent and sometimes named “Auer18×18. Auer v. Robbins, 519 U.S. 452 (1997). deference” after a 1999 elaboration.19×19. It is questionable whether Seminole Rock in 1945 and Auer in 1997 articulated precisely the same principle. See, e.g., Aditya Bamzai, Henry Hart’s Brief, Frank Murphy’s Draft, and the Seminole Rock Opinion, Yale J. on Reg.: Notice & Comment (Sept. 12, 2016) (arguing that “Seminole Rock was about ‘deferring’ to an agency’s contemporaneous or settled construction of its own regulation”), http://yalejreg.com/nc/henry-harts-brief-frank-murphys-draft-and-the-seminole-rock-opinion-by-aditya-bamzai/ [https://perma.cc/73DB-TJJD]; see also Auer, 519 U.S. at 462 (deferring to an interpretation advanced in a legal brief because the circumstances indicated that it reflected the agency’s “fair and considered judgment” rather than a “‘post hoc’ rationalization” (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988))). After Justices in recent opinions began to question Seminole Rock and Auer,20×20. See, e.g., Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 620–21 (2013) (Scalia, J., concurring in part and dissenting in part) (describing Auer deference as “a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation,” id. at 621); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring) (indicating his willingness to reconsider Auer deference altogether, in an appropriate case). In 2012, based in part on concerns that Auer encouraged manipulative agency behavior, the Court cabined the doctrine, introducing many of the limits that the Kisor plurality reiterated this past Term. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 156 (2012) (questioning the application of Auer deference when the agency interpretation in question “would result in . . . ‘unfair surprise’” (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007))). the Court in Kisor granted certiorari limited to a single question: whether the doctrine announced in these two cases ought to be abandoned.21×21. Kisor v. Wilkie, 139 S. Ct. 657, 657 (2018) (mem.); see also Kisor, 139 S. Ct. at 2408 (“The only question presented here is whether we should overrule [Auer and Seminole Rock], discarding the deference they give to agencies. We answer that question no.”).
In both Gundy and Kisor, the Court fractured, producing plurality opinions that ensure the questions the Court addressed in both cases will remain live ones for years to come. In Gundy, a plurality opinion authored by Justice Kagan and an opinion concurring in the judgment from Justice Alito combined to hold that the relevant provision of SORNA did not violate the nondelegation doctrine.22×22. In Gundy, Justice Kavanaugh did not participate, leaving eight Justices to decide the case. Justice Kagan’s plurality opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Alito’s opinion concurring in the judgment provided the fifth vote for the case’s outcome, with Chief Justice Roberts and Justice Thomas joining Justice Gorsuch’s dissent. In Kisor, an opinion authored by Justice Kagan that was joined in part by Chief Justice Roberts retained Auer deference, albeit in a circumscribed form.23×23. Chief Justice Roberts joined only those portions of Justice Kagan’s opinion that delineated the limits that the plurality placed on Auer deference and those portions that described the stare decisis weight that ought to be given the Court’s precedents. Justices Ginsburg, Breyer, and Sotomayor joined Justice Kagan’s opinion in full. Justice Gorsuch’s opinion concurring in the judgment — joined in full by Justice Thomas and in part by Justices Alito and Kavanaugh — disagreed with the plurality’s decision to retain Auer deference. Justice Kavanaugh also filed a separate opinion concurring in the judgment, in which Justice Alito joined.
Notwithstanding the Gundy and Kisor opinions’ fractured quality, setting the two cases side by side highlights the interrelated nature of administrative law doctrines, as well as the current Court’s understanding of administrative law’s two foundational codes, the Constitution and the Administrative Procedure Act24×24. 5 U.S.C. §§ 551, 553–559, 701–706 (2012). (APA). First, Gundy and Kisor illustrate the deep connections in the development of two seemingly compartmentalized doctrines. Gundy — nominally a case about nondelegation — turned largely on the plurality’s narrowing construction of a statutory scheme to avoid a constitutional nondelegation problem. By comparison, the principles of deference at issue in Kisor give leeway to agency administrators to interpret the scope of a legal text’s delegation broadly, so long as they do so reasonably. The interaction between these two seemingly contradictory legal impulses may form the basis for much judicial review of agency action in the years to come.
Second, Gundy addressed a fundamental disagreement between plurality and dissent on how to operationalize nondelegation as a matter of constitutional doctrine. All of the Justices agreed that Article I prohibited the delegation of “legislative Power” to administrative agencies, but they disagreed on where to draw the line. The plurality understood the constitutional standard to be whether a law articulates an “intelligible principle,”25×25. Gundy, 139 S. Ct. at 2123 (plurality opinion). and it understood its own role in applying the constitutional standard as highly deferential.26×26. Id. at 2129–30. By comparison, Justice Gorsuch’s dissent sought to derive a set of more formalized rules to identify those cases that pose nondelegation problems — a set of formal rules that, upon close inspection, connect to other doctrines in administrative law, such as the distinction between “rights” and “privileges” and the distinction between administrative “factfinding” and “lawmaking.”
Third, Kisor addressed the appropriate legal methodology for interpreting regulations. Here, the Court’s focus shifted from constitutional law to the APA, with the Justices disagreeing on the meaning of the Act’s standard-of-review provision and its distinction between “interpretive rules” and “legislative rules.” The plurality retained, but narrowed, “Auer deference”; the concurring justices advocated replacing “Auer deference” with “Skidmore deference.” But despite the depth with which both addressed the topic, the practical application of the principles that the plurality embraced seem obscure. Kisor leaves open many questions about legal ambiguity (and when the doctrine applies), about the meaning of the APA, and about whether the choice between “Auer” and “Skidmore” deference is terminological, rather than substantive.
Despite the seemingly nuanced and technical nature of these issues, the stakes in these cases, according to the Justices, were high. In Gundy, Justice Kagan argued that, if the statute at issue in the case were “unconstitutional, then most of Government is unconstitutional — dependent as Congress is on the need to give discretion to executive officials to implement its programs.”27×27. Id. at 2130. It is hard not to view Gundy and Kisor as proxies for larger battles about the nature of stare decisis and the place of the administrative state in American society. Hard, yes, but not impossible. For at their core, Gundy and Kisor are ultimately cases about the proper rules for interpreting the Constitution and statutes, including a particular statute — the APA — enacted in 1946. Discerning the plain meaning of these legal texts is difficult, to be sure, but a close analysis of language, structure, and history reveals patterns that may form the basis for administrative law in the years to come. In that spirit, this Comment seeks to assess whether the Gundy and Kisor opinions get the questions that they address right and what the opinions tell us about the future.
Part I addresses Gundy and the nondelegation doctrine, starting with the Court’s approach to interpreting statutes before moving on to the plurality’s and dissent’s competing understandings of the scope of the nondelegation doctrine. Part II addresses Kisor and deference to agency interpretation of agency rules, starting first with the question whether the choice between abandoning or retaining Auer deference is likely to make any substantive difference in interpretive outcomes. Part II then addresses whether a plurality of the Court correctly concluded that deference to agency interpretation is consistent with the APA.
* Associate Professor, University of Virginia School of Law. For helpful conversations and encouragement, I owe thanks to Divya Bamzai, Rachel Daley, John Harrison, Tom Nachbar, Caleb Nelson, Sai Prakash, Ann Woolhandler, Julia Mahoney, and George Rutherglen. All errors are my own.