A Nice Analogy, from Justice Kavanaugh

|The Volokh Conspiracy |

Today's decision in Kisor v. Wilkie considers whether courts should "defer[] to [federal adminisrative] agencies' reasonable readings of genuinely ambiguous regulations" that the agency itself had promulgated. (That doctrine is often called "Auer deference," after a case that had prominently applied it.) I leave it to my cobloggers who actually know administrative law to talk about the substance; but I was struck by a line in Justice Kavanaugh's separate opinion, explaining why he disapproved of such deference:

Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules.

A nice rhetorical analogy, I think, whatever position one might take on the substantive debate. (Justice Kagan's majority opinion is also very nicely written, as is characteristic of Justice Kagan's opinions.)

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  1. Individual ballparks–like Wrigley Field–are free to set their own individual ground rules above and beyond MLB’s universal ground rules. Umpires do (or should) defer to Wrigley Field’s own ground rules, since they govern. And my assumption is that Wrigley Field’s interpretation of Wrigley Field’s ground rules are the same as the Cubs’ manager’s interpretation, since the Ricketts family owns both Wrigley Field and the Cubs.

    1. If there is a dispute during the game that involves the park specific rule, the umpire does not let the Cubs manager make the ruling.

      1. And certainly not if the manager chooses to change the rule after the play is over.

      2. No, but that’s because the Cubs manager doesn’t have that authority to begin with. The umpires, employed by MLB, have that power.

        A slightly better analogy is this: each team employs an official scorer, who does have the initial authority to rule whether something is a hit or an error, among other things. The scorer’s decisions are reviewable, theoretically, by MLB. But in general, the scorers get a fair amount of deference so long as their decisions are reasonable.

        Even that doesn’t really capture it, though, because administrative agencies aren’t actually on one “team” or the other. They are simply a separate level of government that is not part of the judicial branch but are exercising quasi-adjudicatory powers.

        Personally, I am probably with Roberts. Sports analogies aside, the basic idea is that if an administrative agency picks from among reasonable constructions of its rule, it should get deference. If it construes a rule unreasonably, it shouldn’t.

        1. A slightly better analogy is this: each team employs an official scorer, who does have the initial authority to rule whether something is a hit or an error, among other things. The scorer’s decisions are reviewable, theoretically, by MLB. But in general, the scorers get a fair amount of deference so long as their decisions are reasonable.

          That’s not analogous at all, because scorers don’t write the scoring rules; they only apply them. MLB writes those rules.

        2. “Personally, I am probably with Roberts. Sports analogies aside, the basic idea is that if an administrative agency picks from among reasonable constructions of its rule, it should get deference”

          Perhaps, but no matter how reasonable each of those constructions is, they should be absolutely barred from choosing different constructions in different cases. Once they pick a construction they should be stuck with it absent going back through the full rule making procedure.

          1. “sports analogies aside, the basic idea is that if an administrative agency picks from among reasonable constructions of its rule, it should get deference. If it construes a rule unreasonably, it shouldn’t.”

            Wrong quote above.

            Perhaps, but no matter how reasonable each of those constructions is, they should be absolutely barred from choosing different constructions in different cases. Once they pick a construction they should be stuck with it absent going back through the full rule making procedure.

      3. The “agency” in the analogy isn’t the Cubs. It’s a nice touch for rhetorical effect, but the entity promulgating Wrigley Field’s ground rules is Wrigley Field. If there’s a dispute as to whether a particular plant is a “vine” or not for the purposes of Wrigley Field’s vine ground rule double, presumably MLB would in fact defer to Wrigley Field, it being their field, their ground rules, etc.

        1. No, that’s doubly wrong. First, the field (by which I assume you mean the owner of the field) does not set ground rules. The team does. (Of course, in some cases, such as Wrigley, those are identical. But the Cubs set those rules in their capacity as the home team playing there, not in their capacity as owner of the field.) These are playing rules, not premises rules. The owner of the field qua owner of the field has no interest in, e.g., whether a batter is awarded two bases or four in a particular game.

          Second, no, the umpires do not consult anyone, let alone defer to anyone’s opinion, in making those calls.

    2. Teams (not parks) can craft ground rules for their parks, subject to league approval. But that’s not the issue; nobody denies that administrative agencies can craft regulations. The issue is deciding what those ground rules (regulations) mean and how they apply in a given instance. And umpires make that determination entirely on their own, without consulting the team.

      1. ” nobody denies that administrative agencies can craft regulations.”

        Perhaps not, I certainly don’t deny that that is the current state of the law. However there are plenty of people, myself include who think it ought not be that way.

        Or in my case, a bit more complicated: Ideally non-delegation would be strictly enforced, and no executive agency should be allowed to make rules. But if you must have rule making agencies, there should be absolute separation between rule making agencies and rule enforcement agencies. Both under one agency should not be allowed.

  2. Speaking of ball games, note how the Chief Justice climbed the fence to take away a home run from those thinking of using the zombification of Auer to attack Chevron deference. But…the game is not over.

    1. Mr. Chief Justice Roberts:
      “One further point: Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). I do not regard the Court’s decision today to touch upon the latter question.”

      Mr. Justice Kavanaugh:
      “Second, I also agree with THE CHIEF JUSTICE that “[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” Ante, at 2. Like THE CHIEF JUSTICE, “I do not regard the Court’s decision” not to formally overrule Auer “to touch upon the latter question.” Ibid.”

      Though perhaps I’m just brain dead and one of those zombies, I’m not sure I agree w/ you about this portion of Mr. Chief Justice Roberts’ opinion. Mr. Justice Kavanaugh certainly had a different take; I understand him to be saying that the decision not to overrule Auer doesn’t allow a conclusion the Court won’t overrule Chevron, consistent w/ his well-established hostility to Chevron Deference.

      It seems Mr. Chief Justice Roberts’ language may be ambiguous: it could be construed to mean, as you suggest, that these restrictions upon Auer do not mean the Court is now or will apply these same restrictions to Chevron; or it could mean that the stare decisis respect afforded to Auer will not be accorded by the Court to Chevron.

      Time will tell …

      1. In this case, the ambiguity in the CJ’s language will be resolved, hopefully soon, by the “agency” issuing the ambiguous language.

  3. I think I’ve heard that if there is an ambiguous term in a contract it is construed against the drafter, or did I miss something?

    Why if an agency drafted an ambiguous rule in the first place should the agency be allowed to interpret it to save themselves?

    Why shouldn’t they be required to fix the rule?

    1. Why if an agency drafted an ambiguous rule in the first place should the agency be allowed to interpret it to save themselves?

      Why shouldn’t they be required to fix the rule?

      Maybe because there is a presumption that they know what they had in mind? Anyway, if they fix it they are likely to do so in a way that justifies their interpretation.

      1. That may be but the person who relied on the ambiguous rule would get a do over and the agency might be more careful drafting regulation if there were consequences of bad rule making.

        Congress passes vauge ambiguous laws, tells agencies to make rules, the agencies make vague ambiguous rules.

        It’s laziness and bureaucratic risk avoidance. The incentives need to change.

        1. It’s laziness and bureaucratic risk avoidance. The incentives need to change.

          I agree.

  4. During the NBA Finals the commentators said the referees would defer to the TV guys on buzzer beaters prior to instant replay.

  5. I guess those baseball tickets Kavanaugh bought we worth it.

    1. He seems to have paid attention to the game too, even surrounded with all that ballpark beer.

  6. “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.”

    They don’t defer to the Cubs manager, but they do defer to Wrigley’s owner.

    1. They don’t defer to the Cubs manager, but they do defer to Wrigley’s owner.

      No.

    2. No, I am entirely certain the umpires do not consult the Ricketts before making a call involving Wrigley’s ground rules.

  7. Typical ivy league logic.

    1. Turtle Dove: ?

      1. Hit the antepenult. (And check out the outfield walls at Wrigley.)

  8. Analogies are like the heat death of the universe; they never work and nothing good comes of them, so stop making them.

    1. awildseaking: Can you elaborate, please? Much legal argument rests on analogical claims: this fact pattern is similar to some other fact pattern (usually though not always a fact pattern in some legal precedent), so it should be treated similarly. And such analogies do seem to often “work” in the sense of persuading people. Or am I missing the joke?

      1. About the only time I ever wish I were a lawyer is when someone tries to prove a substantive point with an analogy. I imagine myself answering:

        “You have been offered an analogy, by a lawyer who suggests it proves his point. I consider that to be no more persuasive than a subject change. But we can test whether I am right. Let’s hear what happens when our analogizing friend is asked to put his analogy aside, and prove his point on the same basis that supported his example in the first place, using the same arguments used when no analogy was available. If he can do that, and you find it convincing, then I concede the strength of the analogy. If he cannot convince you without the analogy, then I suggest you must disregard the analogy, as a proven failure—in fact no better than the subject change I suggested. If it is a valid analogy, then the reasoning should work alike in the analogy, and in the case which is being tried before you now. Which means the analogy should be unnecessary.”

        Maybe that doesn’t always work. But I suggest it puts Kavanaugh and the Cubs away.

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