Supreme Court

Kagan and Gorsuch Clash Over Judicial Deference to the Administrative State

Who will rein in the ever-expanding administrative state?

|

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 an important Supreme Court precedent, Auer v. Robbins (1997), should be overruled. In Auer, the Court held that when an "ambiguous" regulation promulgated by a federal agency is challenged in court, the judge hearing the case should defer to the agency's preferred interpretation of its own regulation. That interpretation, the Court held in Auer, is "controlling unless plainly erroneous or inconsistent with the regulations being interpreted."

In June, the Court decided a case that asked the justices to end Auer once and for all. Writing for a narrow majority in Kisor v. Wilkie, Justice Elena Kagan saved the precedent 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 say the doctrine empowers bureaucrats at the expense of judges. Kagan acknowledged those critics but insisted that the doctrine is not an abdication. "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."

Gorsuch disagreed. "It should have been easy for the Court to say goodbye to Auer," he wrote in Kisor. 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.'"

Federal judges routinely "reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution," Gorsuch pointed out. "Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency's interpretation as controlling even when it is 'not…the best one.'"

When the next case testing the bounds of the administrative state reaches the Supreme Court, Kagan and Gorsuch will be the ones drawing the battle lines.

NEXT: Brickbat: Misdemeanor Purple Nurple

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

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

    In progthink this is a feature not a bug.

    1. Gorsuch might just be the most libertarian thing to happen to government in a century or more.

      1. ++++++++++
        Been reading his book “A Republic If You Can Keep It”
        Cynical as I am, it actually gives me hope of someday living in an actual Constitutional Republic

      2. One would think a libertarian magazine might give some respect to the president that appointed “the most libertarian thing to happen to government in a century or more”. But somehow I think a contagious version of TDS infected most of the staff.

        I thank Root for an excellent report, that didn’t denigrate Trump.

        And yes, progressives want judicial bias in favor of the political class and government. May they get the oversight, they’re giving to Trump. That would be a great leap forward for libertarians.

        1. One would think a libertarian magazine might give some respect to the president that appointed “the most libertarian thing to happen to government in a century or more”.

          They seem to have respect for Gorsuch. I don’t really think a libertarian magazine should have respect for any politician. Judge the actions as they come.

          1. Does judging include switching from an anti war position to supporting an illegal war in syria?

            1. Hey, I didn’t say they get it all right. I’m saying what should happen. I agree that Reason is often biased towards bashing Trump.

          2. don’t really think a libertarian magazine should have respect for any politician.

            But it should have respect for judges? Judges that routinely take away our liberties and our property? And you don’t want to respect someone who advances our liberty because he happens to be a politician?

            How about respecting those people who advance liberty, period?

        2. > One would think a libertarian magazine might give some respect to the president that appointed “the most libertarian thing to happen to government in a century or more”.

          It happened because Trump was given a short list of candidates from the Federalist Society. That was his saving grace. In terms of judicial appointments he ranks light years above Bush. Hell, if Trump followed the Bush mode he would have appointed Guiliani.Ugh.

          Reason has been quick to praise the stopped clocked when he’s been right twice a day. But that does not mean the stopped clock is not stopped.

          1. It happened because Trump was given a short list of candidates from the Federalist Society. That was his saving grace.

            Saving from what? Trump asked the Federalist Society. That’s because he is politically a socially moderate free market guy.

            Reason has been quick to praise the stopped clocked when he’s been right twice a day. But that does not mean the stopped clock is not stopped.

            Trump is doing what he promised to do before the election, and he’s doing as well as he can under the circumstances, with astonishing resilience and determination. That doesn’t seem “stopped” to me.

        3. MoreFreedom sounds like an enthusiastic member of Libertarians For Trump.

          Also Libertarians For Tariffs; Libertarians For Bigoted, Cruel, Authoritarian Immigration Policies; Libertarians For Statist Womb Management; Libertarians For Government Gay-Bashing; Libertarians For Race-Targeting Voter Suppression; Libertarians For Big-Government Micromanagement Of Ladyparts Clinics; Libertarians For School Prayer; Libertarians For The Drug War; and Libertarians For Pence.

          Carry on, clinger.

          1. The Rev is part of Libertarians for scalping live babies, Libertarians for chicks with dicks showering with your daughter, Libertarians for deference to China, Libertarians for mob rule of Portland, Libertarians for sheltering murderers and serial rapists from deportation, Libertarians for ground troops in 137 countries, Libertarians for Wealth Confiscation, and Libertarians for the National Health Service

            1. Libertarians for Chemically Castrating confused 7 yr olds

              1. The “Rev”* loves authority, as long as it is directed at those he does not like or agree with

                *pretty much the whole f’n prog morass; it never seems to occur to any of them that such things are double edged or, that what you empower a government to do unto others will most certainly be done unto you

          2. It’s delightful to see bigots, racists, and totalitarians like you light their hair on fire and run around like crazy. That alone is worth it.

        4. A libertarian magazine should not give respect to a sitting president. Ever.

          1. But it should give respect to a sitting supreme court justice?

      3. 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.

    2. All the more reason to get a 2nd term for Trump and hopefully another Gorsuch on the Supreme Court. The alternative is more Kagan’s.

  2. Auer deference combined with stare decisis – what could go wrong? I’m not holding my breath waiting to see which way Roberts is leaning on this one, and I’m not going to be shocked if Kavanaugh follows Roberts’ lead.

    1. Kavanaugh is a Roberts clone. Really wouldn’t surprise me if he sides with Kagan. We don’t deserve Gorsuch.

    2. Kisor has already been ruled. He sided with Kagan and Gorsuch in different parts.

  3. The only correct action to an ambiguous statute or law is to strike it down. You cant allow government to interpret laws at whim and without clarity. This is how you get banana republic like government, see emoluments clause.

    Likewise with the rate that liberals are changing the meaning of words, there is even more danger in allowing ambiguous interpretation which allows government to avoid even the barest requirements to rule making.

    1. The only correct action to an ambiguous statute or law is to strike it down. You cant allow government to interpret laws at whim and without clarity.

      Came here to say this. If judges or officials cannot unanimously agree on the interpretation of a law, it is not fit to be a law. After all, if the experts who wrote it don’t know, how could we?

    2. “The only correct action to an ambiguous statute or law is to strike it down. You cant allow government to interpret laws at whim and without clarity. This is how you get banana republic like government, see emoluments clause.”

      I’ve been hoping to see the SCOTUS do this just once.

      “You know, this law is too vague to actually be enforced.” But they always seem to go “Well, we can trust these unaccountable dipshits”

    3. He’s right, you know….

  4. All I want for Christmas….another justice like Gorsuch [Willett?]. When that happens things could change around here.

    1. You and me both, brother. Imagine what a full court of them could accomplish!

      1. I very much like to imagine that. Congress would have to devote its time to actually writing laws, instead of spending years chasing specious Russian collusion theories. Hey, they may only pass one or two a year, and I believe that is how it is meant to work. Very open and deliberative process whereby everyone has an opportunity to weigh in on legislation that will effect them.

      2. Can you imagine both the right and left screaming for court packing?

  5. My vote is that any regulation which is not crystal clear is automatically void.

    1. Agreed. We also need to get rid of “ignorance of the law is no defense”. If the Legislature can’t write clear, concise laws that average humans can reasonably read and understand, then they need to be sent back for a do-over.

      1. But then they’d have to get rid of the entire tax code, and we can’t have that, no no no /sarc

      2. “Agreed. We also need to get rid of “ignorance of the law is no defense”.”

        Thing is…that motto is ignored when the powerful have a problem.

        I mean, Hillary had no clue that the “C” on documents meant classified.

    2. I would have all questions of a law’s validity be decided by a jury of 12 random free adult citizens (no mental patients, prisoners, children, etc). No voir dire. And constitutionality includes being clear, consistent, and consistently enforced. If 12 random adults can’t agree on what a law means, it is voided in its entirety. No appeals — again, I don’t care if judges can understand a law, especially 2-1 or 5-4 decisions.

  6. Kicking and screaming into 2020

    Cant wait

  7. I’ve noticed this with a lot of financial regulations. The IRS will completely fail to address incredibly common problems in any capacity. Or they’ll start to address a subject, but fail to provide the necessary level of detail that would enable anyone other than the IRS to explain a rule. I couldn’t understand in the slightest why they would be so vague, then I realized that their goal was to be as vague as possible to provide them latitude. The idea that the government should have latitude when it takes from us is quite scary.

    1. “then I realized that their goal was to be as vague as possible to provide them latitude. ”

      Bingo!

      Whenever society seems like a mystery, ask yourself, cui bono?

      If it’s the people who created the mystery, your mystery is resolved.

  8. The incentives for arbitrary governance, empowered by the logic of Auer, are thoroughly perverse from a legal and due process standpoint.

    If administrative agencies can interpret their own regulations however they see fit, provided the regulation in question is sufficiently ambiguous, then the administrative agencies have every incentive to *deliberately* enact ambiguous regulations. The regulations, therefore, can be made to mean whatever it is that the agency wants them to mean. The assumption of good faith which underlies Auer is that administrative agencies, and their armies of bureaucrats, are interested in being honest brokers; that they may be dishonest and power hungry never seems to cross the minds of those clamoring for the preeminence of the administrative superstate.

    1. It is worse than that. It would be one thing if they could interpret them as they see fit and were then bound by that interpretation. That would make them at least akin to courts and make the law at least stable. They however are not bound by these decisions. Change the administration and the decision can and often is reversed. Even worse than that, the decisions are not even binding within an agency. So the bureaucrat dealing with you this year or in one section of the country might have a totally different view of things than the bureaucrat dealing with you next year or in another part of the country. Neither bureaucrat has any duty to listen to the other.

      1. This is correct. But, I will note, this is not a problem unique to administrative agencies (although, admittedly, it seems to be the case that administrative regulations are most susceptible to such abuses).

        The courts themselves are also subject to the same incongruous, incompatible decisionmaking process; and, in practice, it is a picture of complete chaos. Federal district courts, as an obvious example, often rule in unpredictable ways on any variety of issues; there is nothing which mandates any uniformity among coordinate courts, even within the same federal circuit, even as they rule on the exact same issues; and then, of course, it is often the case that Circuits are in conflict as well. These same courts are then tasked with deciphering a similar, even looser decisionmaking process employed by federal agencies.

        Thus, not only does Auer create perverse incentives for the agencies, tending toward arbitrariness, given the structure of the federal court system, the arbitrariness is usually magnified rather than reduced. Not only are the agencies under no obligation to be internally consistent, but the propriety of their readings of their own regulations, as interpreted by federal courts, can vary state by state; indeed, county by county.

        In other words, the varying degrees of Auer deference exercised by any particular federal court can actually result in the same words and phrases, within the same contested regulation, holding completely different and conflicting meanings, at the same time.

      2. And the other shoe drops.

        Thanks, I was wondering if the agency would be held to their interpretation of their regulation from case to case.

        Add “they get to say what it means” to “they can change what they say it means from case to case”, and you get regulation as whatever suits the agency’s purposes in each particular case.

  9. The Auer doctrine is the result of regulatory agencies trying to fulfill the role of the common law courts. No law, which is all a regulation is, can be clearly applied to every circumstance. The traditional sollution to this problem was to have the courts apply the law to various situations and record their interpretation in court decisions creating the collective wisdom known as the common law.

    Regulatory agencies usurp the role of common law courts. Like courts they apply the law in different ways to different circumstances. Unlike courts, their decisions are never recorded and are rarely if ever binding on future cases. So regulatory law is inherently arbitrary and political. Since there is no such thing as a binding precedent, the law as it applies to you is the whim of the bureaucrat who has your case or whichever political party happens to be in charge at the time.

    I think it is an improvement to let judges decide the interpretations since those decisions are then binding precedent. So, I agree with Gorsouch here. But the deeper problem is the regulatory state itself. Most regulatory decisions don’t end up in court and thus allowing judges to decide the interpretation in a binding way will only affect a small number of cases before agencies. The regulatory state is inherently arbitrary and tyrannical. And no amount of tinkering by the courts will change that.

  10. If I ran the zoo, I would ask Gorsuch’s advice on my next S. Court Justice nomination.

    1. He has been an excellent justice so far. The best the Republicans have put on the court since Thomas.

      1. I always cringe at praise for Thomas; he did after all stand up for strip searching children [Safford Unified School District v. Redding]. Conservative yes, libertarian not so much.

        1. Thomas is the second best Justice in modern history.

          What do you expect?

  11. This is an excellent article but I can’t help wondering why it’s being published now. Kisor was decided 4 months ago.

    1. They saved it for a slow news day? You’re right, the timing is a bit weird.

  12. Kagan is reliably Left wing, anti-Constitution and, most likely anti-American. She’s an affirmative action justice whose presence on the high court is a bad joke.

  13. >>Who will rein in the ever-expanding administrative state?

    the T Administration? also, i heart Gorsuch

  14. Federal judges routinely “reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution,” Gorsuch pointed out. “Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency’s interpretation as controlling even when it is ‘not…the best one.'”

    I don’t see why this is so hard.

    The first part (Federal judges routinely “reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution. . .”) is good because “statutes, rules of procedure, contracts, and the Constitution” are legal/judicial/law tools that a judge has the expertise/training to make decisions on.

    But the second part, (Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency’s interpretation as controlling even when it is ‘not…the best one.'”) is wrong because who is a better “judge” of technical issues like security clearances, environmental standards and procedures, etc. – and obviously it’s the technical experts at the agencies and not a judge. And how is a judge supposed to know which interpretation is “the best one” when it’s not a legal interpretation?

    1. So, based on something something is too technical for a judge to decide, you are content to be governed by an un-elected, unaccountable, capricious, and unpredictable administrative bureaucracy of “technical experts?” If judges need “expert” advice they can seek that out rather than deferring to an agency to make, interpret, apply, change, and enforce it’s own rules.

      1. Precisely.

        Expert reports and testimony are ubiquitous in legal practice; judges, state and federal, routinely render decisions on specialized matters in a variety of contexts. Moreover, interpreting regulations does not necessarily require any specialized or technical knowledge. Deciphering the plain meaning of words in the English language does not require a PhD.

        If a regulation prohibiting the hunting of “endangered waterfowl” is cited to fine a hunter, for example, courts should be under no obligation to defer to the EPA that the term “endangered waterfowl” actually encompasses within its definition a turkey that was shot while drinking from a stream.

    2. It’s called separation of powers; it’s a thing.

    3. >>>and obviously it’s the technical experts at the agencies

      yeah because totes not biased.

  15. Hopefully Kagan will soon be gone.

    1. Admit it or not, we are all on a Ginsberg death watch.

      I’m willing to bet that she is being treated with experimental drugs just to keep her alive for another year. Also willing to bet there is a book in the making, “The Race to Save Ginsberg and The Modern Administrative State” by Drs. Blow, Spitz, and Swallow

  16. IANAL, but I thought contract ambiguity is decided in favor of the party that didn’t write the contract? This isn’t a contract, but the concept is a good one.

    1. That’s interesting.

  17. Well between Kagan and Gorsuch, only one of them was ever a real judge. I guess there’s technically not a requirement for someone to be a judge before becoming one of the most important judges in the country, but one would think it would be a logical consideration.

  18. Kagan is for more administrative state
    Duh
    Waiting for Reason to publish an article about two guys on CT who said stuff that offended someone and got arrested for it.
    But non where near as important as legal weed and no borders

  19. That is an impressively tame take for Elena “The Federal Government Can Require You To Buy Broccoli” Kagan.

  20. Kagan’s view seems to favor arbitrary and capricious application of regulations.

    “We didn’t mean that. We meant this. We were wrong before when we said we meant that.”

    The only reasonable way to interpret regulation is by the same standards of law itself: what it was understood to mean at the time it was written. Of course, federal government was never supposed to be so hands-on and complex in the first place. If the federal government was limited to its actual constitutional role, this would not be an issue.

  21. So who punted? Roberts again?

  22. Kagan wants to be the unwitting minion of some gruesome Federal Agency. Shame on her.

  23. Kagan is a product of the Administrative State. She is just another Borg in the Collective. Four of Nine.

Please to post comments

Comments are closed.