Supreme Court

Gorsuch and Kagan Clash Over Judicial Deference to the Administrative State

“It should have been easy for the Court to say goodbye to Auer.”

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A major conflict is now underway on the U.S. Supreme Court between Justices Elena Kagan and Neil Gorsuch over the issue of judicial deference to the administrative state.

Their division centers in part on whether or not a contentious Supreme Court precedent, Auer v. Robbins (1997), should be kept in place by the justices or struck down in its entirety. In Auer, the Court held that when an "ambiguous" regulation promulgated by a federal agency is challenged in court, the judge or judges hearing the case should respect the expertise of the agency and its staff and therefore defer to the agency's interpretation of its own regulation. An agency's interpretation, the Court held in Auer, is "controlling unless plainly erroneous or inconsistent with the regulations being interpreted."

Last month, the Supreme Court decided a case that asked the justices to overrule Auer once and for all. Writing for a narrow majority in Kisor v. Wilkie, Justice Elena Kagan managed to save Auer from total destruction. "Auer deference retains an important role in construing agency regulations," Kagan wrote. "When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision."

Critics of Auer deference argue that the doctrine is tantamount to judicial abdication, that it tells judges to stop doing their judicial duty. Kagan acknowledged those critics, but insisted that the doctrine, while deferential, does still have some teeth. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference." According to Kagan, Auer "is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear."

Justice Neil Gorsuch was not persuaded by Kagan's positive view. "It should have been easy for the Court to say goodbye to Auer," Gorsuch wrote. Not only does Auer require judges "to accept an executive agency's interpretation of its own regulations even when that interpretation doesn't represent the best and fairest reading," but the precedent also "creates a 'systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'"

Gorsuch also challenged Kagan's claim that the Auer doctrine has some judicial teeth. On a daily basis, Gorsuch wrote, federal judges "reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution. Yet when it comes to interpreting federal regulations," he continued, "Auer displaces this process and requires judges instead to treat the agency's interpretation as controlling even when it is 'not…the best one.'"

It is no surprise that Kagan and Gorsuch are now squaring off over this particular issue. In their respective pre-SCOTUS careers, the two figures basically stood on opposite sides of the same general debate.

For example, in a 2001 article for the Harvard Law Review, Kagan, who was then a Harvard law professor, made the case for broad judicial deference not only to federal agencies, but also to those presidents who seek to wield extensive influence over federal regulators. As an example of this phenomenon in action, she pointed to President Bill Clinton:

Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals. Whether the subject was health care, welfare reform, tobacco, or guns, a self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions—regulations, guidance, enforcement strategies, and reports—to showcase and advance presidential policies. In executing this strategy, the White House in large measure set the administrative agenda for key agencies, heavily influencing what they would (or would not) spend time on and what they would (or would not) generate as regulatory product.

Under Kagan's view, the courts should generally extend the same deference to such presidential behavior as the courts already extend to the regulatory agencies.

Gorsuch, by contrast, established himself as a critic of judicial deference to the administrative state while serving as a judge on the U.S. Court of Appeals for the 10th Circuit. In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, for example, Gorsuch challenged the notion that judges should defer to an agency's interpretation of an "ambiguous" federal statute. "Under any conception of our separation of powers," Gorsuch wrote, "I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."

In sum, when the next big case testing the bounds of judicial deference to the administrative state reaches the Supreme Court, it will be Kagan and Gorsuch drawing the battle lines.

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  1. An agency’s interpretation, the Court held in Auer, is “controlling unless plainly erroneous or inconsistent with the regulations being interpreted.”

    I think what bothers me so much about this is its ludicrousness. If an interpretation is “plainly erroneous or inconsistent” then the deference is pointless; if the interpretation is so banal and uncontroversial, then the court could decide that on its own,

    It also basically requires the court to do enough interpretation to decide it doesn’t need to interpret.

    It;’s just bunk. An excuse to not decide anything. An excuse to defer because deferment is proper.

    1. I think what bothers me so much about this is its ludicrousness.

      And wasn’t some blatantly illegal aspect of the ACA upheld because while the stated intention was blatantly illegal the precedent that says the regulations can’t be interpreted in a blatantly illegal way meant that it must not be illegal?

      I can’t remember specifically what it was, though, so I may have dreamed it.

      1. Roberts deferred so thoroughly that he had to make up a brand new deference on the spot!

        1. It wasn’t the Penaltax, although that one was pretty bad, too. It maybe had to do with the extra payments to insurance companies?

          It’s bugging me now, but I can’t call up anything that will even enable me to Google it.

          1. Maybe you’re thinking of the federal exchanges in states that didn’t set them up. I happen to think Roberts’ decision was right on both that and the penaltax.

            Auer deference is silly, though. Why are they in court if the case isn’t ambiguous? And if it’s ambiguous, isn’t that what the courts are supposed to decide? But if it’s completely ambiguous, the statute should be void for vagueness.

            1. Maybe you’re thinking of the federal exchanges in states that didn’t set them up.

              THAT’S EXACTLY WHAT IT WAS THANK YOU!

              It was “since it would be totally illegal for the Federal government to coerce the states into setting up these exchanges by threatening to withhold funding, that must not be what they intended even though they explicitly said that that’s what they were doing.”

              1. Which strikes me as not particularly harmonious with more recent arguments we’ve seen to the effect that “what the Administration is doing is technically legal, but we don’t like their stated reasoning so we’ve decided it isn’t.”

        2. Does Roberts call “W” to see how he should rule? His rulings are increasingly Bush level bullshit.

        3. Naturally Reason didn’t bother to indicate that Roberts was yet again the vote “from the Right” which betrayed the Constitution.

          I am so looking forward to his impeachment for the part he played in the Coup as the head of the FISA Court.

    2. Makes $130 to $160 per day online work and i received $16894 in one month online acting from home.I am a daily student and online work simply one to a pair of hours in my spare time.Everybody will do that job and makes extra cash by simply open this link… http://www.online-3.com 🙂

  2. …creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.’

    Thank you.

    1. For progressives that is a feature, not a bug.

      1. Even when they are not in power they consider it a feature and not a bug. Taking power away from Trump is anathema to them. Unthinkable. They would rather have him remain in power rather than limit the power of the presidency.

        1. This isn’t just an issue with Trump voters. I remember a meme showing a picture with the faces of Obama and his staff as they had to “welcome” Trump into the White House.

          The caption said “That face you make when you spent 8 years increasing the power of the Presidency, and you realize you now have to give all those things to Trump”.

          I *really* wish people had a better understanding of “Before you give a power to the President, imagine the politician you most hate having that power, and ask yourself if you’re ok with that.”

          1. Last paragraph of your comment is a great test for assessing the growing administrative state. All Presidents expand the sweep of executive/administrative power. This is the human impulse because nobody likes to hear “you can’t do that” but mainly because any President and his sycophantic staff sincerely believe that they are in league with the angels. Thank Trump for Gorsuch, because Gorsuch will rule to rein in Trump ( or Biden, Warren, Harris, etc.).

            1. Except that every true partisan is sure that someday their side will rule in perpetuity.

  3. These SCOTUS justices are idiots.
    Why not just apply the always relevant “Fuck you, that’s why” precedent on all their decisions?
    It would cut through a lot of bullshit.

    1. ^This guy gets it.. Can I interest you in an appellate position on the 9th circuit?

  4. Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals.

    Far as I’m concerned, this quote from Kagan is enough to disqualify her from being any sort of judge, period,

    Only dictatorship show trial judges show that kind of deference. It’s practically treason in my book.

    1. She’s the worst person currently on the court, for sure.

    2. Yeah, completing an agenda is not a good reason to allow deferential executive power. Enough with the idea that the president (or any politician for that matter) should be given the reigns to do his job because his intentions are good.

      1. Reins*. my apologies.

        1. ‘Twas better the first time 🙂

    3. Of course, I am sure that now that Donald Trump is facing a House of Representatives at least as hostile to him as the Congress that Clinton faced, and with Trump at least as eager to show progress on his policy goals on immigration, Kagan will happily assist him in attaining them, and not let little details like the Constitution or statutes get in his way. Right?

      Can someone please tell idiots like Kagan that in our constitutional system, Presidents don’t get to impose their “domestic agendas” on Congress? And that Congress’ law-making powers are for Congress to exercise, not merely a preliminary step the President must exhaust before being able to declare himself Lawmaker? And that our system of checks and balances allows a “hostile Congress” to block the President – just as the veto clause allows a “hostile President” to block “progress” on Congress’ “domestic policy goals?”

  5. Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals.
    Yeah, that’s not how any of this is supposed to work….

    1. “Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Trump and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals.”

      I’m sure she would be nodding her head in agreement at the propriety of this, right? Right?

      1. I’m pretty sure it matters who is actually in the White House at the time. She only wants for good policies to be forced upon us by free wheeling agencies.

  6. I like how she’s supporting the idea that we elect a president to establish social goals and make laws, and we elect congressional representatives to do…something else.
    Smacks of the monarchy, Ms. Kagan.

  7. Like a stopped clock, President Trump is sometimes correct. Thanks for Gorsuch.

    1. This #LibertarianMoment brought to you by Orange Man and the Deplorables who supported him, over the hysterical pants shitting opposition of @Reason.

      You’re welcome.

      1. Oh, shut up. You deserve credit for nothing except dumbing down the Reason comments further.

  8. Auer sounds almost identical to Chevron v NRDC, the granddaddy of them all re: deference to bureaucratic supremacy. Goruch has been itching to take Chevron down.

    The Reagan EPA decided it could expedite Clean Air Act permitting. The Carter EPA had a strict interpretation of the statute that said that no piece of equipment could be added to a manufacturing plant if it added to air pollution. Reagan’s EPA said that it could, if the new equipment was part of an overall plant change that caused a net air pollution decrease.
    The NRDC sued. The SCOTUS held that the EPA should be deferred to.

    The EPA Administrator was Anne Gorsuch, Neil’s mother

    1. How many degrees of separation from Kevin Bacon?

      1. Including toast and egg?

      2. Fred Thompson probably knew her –> Charles Grodin –> Laura Linney –> Kevin Bacon

  9. “Auer deference retains an important role in construing agency regulations,” Kagan wrote. “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision.”

    How can a sitting Supreme Court Judge say these words while claiming to uphold the constitution?

  10. “creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'”

    Watch Gorsuch DESTROY Kagan in angry rant.

  11. “First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous.”

    This is why I cant fucking stand kagan. No dumbass, ambiguous laws should not be deferred to by the creating agency, they should be struck down. If someone under scope of the regulatory agency cant understand the rules, he should not be subject to said rules solely after he violates them and is punished. Kagan should fucking go back to law school or at least try to read jurisprudence doctrine. Unclear laws should not be saved. Should be struck down always.

    1. Shit, just realized I told a latina to go back somewhere. I apologize for the racism.

        1. SHE NEEDS TO GO BACK TO RUSSIA!

        2. She’s not the ‘wise latina’? I tend to get these stupid progtard cunts mixed up. As they are all incredibly stupid, marxist, and bovine.

          1. Sonia Sotomayor is the (un)wise Latina – making that claim in public proved she’s an idiot, but she seems to be not as stupid as Elena Kagan. Kagan’s grandparents emigrated from Russia, but Jew may be more relevant to her ethnicity than Russian.

        3. You’re correct. Told a woman?

          Kagan and Sotomayor can both wax a male tranny’s balls by force in canada. Fuck them both.

      1. Shit, just realized I told a latina to go back somewhere. I apologize for the racism.

        Lawyers, the original protected minority.

        1. Lawyers aren’t protected….

  12. Why does it seem sometimes that Gorsuch is the only rational one on the SC? Trump, can you get a couple more like him on the court, PLEASE!?

    1. He had his chance and blew it on Kavanaugh.

      1. Not exactly. Kavanaugh was Kennedy’s choice for his replacement.

        Maybe Trump could’ve master negotiated his way to someone better but some actually believe his powers to be finite.

        1. Kavanaugh was Kennedy’s choice for his replacement.

          OH! I didn’t realize that. In that case, I would have told Kennedy to eat shit and stay on the court.

    2. Well, there is an election next year.
      You will still be waiting for any democratic candidate to release a list of potential nominees. Orange Man Bad however – – – – –

      Choose wisely, young grasshopper.

  13. unless the regulation is genuinely ambiguous

    If the regulation is genuinely ambiguous it should be struck down for vagueness. And if I know anything about lawyers – “it depends on what the meaning of ‘is’ is” – every single law in the country can be struck down.

  14. An unambiguous law that the agency reinterprets to mean anything the agency wants would be A-OK by Kagan’s logic.

  15. >>>systematic judicial bias in favor of the federal government

    should be enough to overrule.

  16. In sum, when the next big case testing the bounds of judicial deference to the administrative state reaches the Supreme Court, it will be Kagan and Gorsuch drawing the battle lines.

    There seem to be a lot of cases dealing with this issue recently. Unfortunately the Anglo system of law (and our constitution) developed long before the administrative bureaucracy so its not very well adapted to to dealing with bureaucratic ‘challenges’. They aren’t generally constitution-type challenges. Its often even difficult to get standing in our court system. And the whole appeals process in courts that have no expertise is a bit silly.

    Germany of all places actually came up with the solution before they threw away liberalism. Hayek described it and Michael Greve is following up with that – Germany’s administrative courts. Which focus exclusively on the bureaucracy and whether they are staying within the bounds of legislation. Seems like the right idea.

    1. Oh and those administrative courts are not part of the agency (or here the executive branch) so they themselves don’t show deference to the agency and can’t be fired at whim by a Prez – but they are knowledgeable enough about those specific issues so they don’t have to defer.

    2. Why create a secondary portion of “law”, ie “regulations” which we all know act effectively as laws, many having criminal penalties and can include jail time.

      My Solution for years has been this: Let the agencies produce legislative advisory packages. They can craft the law…er… regulation, they have all the expert input, but then those are forwarded to Congress for an up or down vote.

      This solves every problem in the chain and in theory, could make everyone happy. The regulatory agencies get to exist. Liberals rejoice. They maintain their expertise in the crafting of laws…er, regulations. Technocrats rejoice. But said laws…er… regulations must be voted on by a democratically elected body, accountable to the people: Libertarians and small-d-democrats rejoice.

      Then as laws…er… regulations, they’re once again subjected to the same constitutional scrutiny as any law… because it’s a Law, not an administrative regulation.

      We don’t need a parallel legal system to handle the executive branch’s laws…er… regulations– meaning the executive branch returns to being the executive branch.

      1. Why create a secondary portion of “law”, ie “regulations” which we all know act effectively as laws, many having criminal penalties and can include jail time.

        It’s the execution of laws. Congress is not going to draft law that covers all the contingencies of how it will be executed. It’s unconstitutional for them to take over the executive. Bureaucrats are going to exist in the exec branch. The question is how do you control them.

        From that link, we have 12,000 administrative judges (mostly SS but also veterans and immigration and maybe bankruptcy) who do everything from adjudicate citizen complaints to the due process stuff of ruling on immigration status. But they are Article 2 judges – part of the agency and subject to Prez so deferential.

        the German solution is to create basically an Art 3 court that specializes in admin cases. And let them create their own precedents in what is new judicial law rather than bringing stare decisis (which is all deferential) over form the other. It would still be up to the Prez/Senate to appoint judges there who aren’t deferential but that is and sb a political decision. The only cases that would then go to the SC are constitutional questions.

  17. Activist judges seem to be back in vogue in some (backward) circles . . .

    1. The Right always wants judges who are active in enforcing the Constitution.

    2. “Activist judges seem to be back in vogue in some (backward) circles . . .”

      The bigoted asshole seems to write English as a second language. Or, perhaps, he’s so fucking stupid he simply does not know what “activist” means.
      Or both…

  18. “It should have been easy for the Court to say goodbye to Auer”

    Like this:

    https://www.youtube.com/watch?v=_50-gOeBilc

  19. “Kagan acknowledged those critics, but insisted that the doctrine, while deferential, though still have some teeth. “First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference.”

    Some regulations are more equal than other regulations and Kagan has no idea what that means.

  20. “Critics of Auer deference argue that the doctrine is tantamount to judicial abdication”

    A plain reading of the Auer deference shows that it is judicial abdication.

  21. Meanwhile, they’ll keep propping up RBG’s corpse until Trump is out of office.

  22. Ha! Kagan is supposed to be the liberal justice while Gorsuch is the conservative justice. Just goes to show this country has no idea what liberal and conservative mean anymore. Gorsuch is way more truly liberal than any of the progressive (read conservative since that is what progressives really are) justices.

  23. This is so fucking hilarious when you consider that if the fake libertarian jerkoffs got what it was that they really wanted, the entire Supreme Court would be a bunch of Kagans, Sotomayors, and Ginsburgs.

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