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February 18, 2020 Appellate Issues | Winter 2020

The State of the Administrative State

By Frederick Andrew Braunstein

The continuing survival, and relevance, of judicial deference to administrative agencies’ interpretation of their own regulations was the main topic of a packed plenary session at the 2019 AJEI Summit in Washington, D.C. 

Tillman Breckenridge, the co-managing partner of the Washington D.C. office of Pierce, Bainbridge, Beck, Price & Hecht LLP, moderated the session, which featured a panel of judges and practitioners that included: the Honorable Geoffrey Slaughter, Associate Justice of the Indiana Supreme Court; Donald Verrilli, a partner at Munger, Tolles & Olson LLP and former Solicitor General of the United States; and, Erin Murphy, a partner at Kirkland & Ellis LLP.

The majority of the panel’s discussion focused on Auer deference and the Supreme Court’s recent decision in Kisor v. Wilkie, 588 U.S. __, 139 S. Ct. 2400 (2019).  Broadly speaking, Auer deference, which is also sometimes called Seminole Rock deference, is a practice established by the Supreme Court of deferring to an administrative agency’s reasonable interpretation of an ambiguous regulation the agency, itself, promulgated.  The practice is named after the Supreme Court’s decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).  Auer deference differs from Chevron deference, which relates to deference to an administrative agency’s interpretation of a statute that it administers.  See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

As the panel observed, since the appointments of Justices Gorsuch and Kavanaugh, there has been growing speculation that the Supreme Court – which is perceived to be increasingly critical of the scope of the administrative state – will move away from, or even overturn, its doctrines of deference to administrative agencies.  And, indeed, in the Kisor case, the Court granted certiorari on the specific question of whether Auer v. Robbins should be overruled. 

However, in a recent 5-4 decision, the Kisor court declined to overrule Auer.  The panelists thus primarily focused on the import of the Kisor case, if any, on Auer deference, and on what Kisor might portend for the future of administrative law. 

Ms. Murphy suggested that the Supreme Court’s main message to lower courts in Kisor, even though it declined to overrule Auer, was that lower courts should only rarely apply Auer deference going forward.  As the majority opinion in Kisor emphasized, Auer is a constrained doctrine, with only limited circumstances in which deference is actually warranted.  The practical effect of these constraints, in Ms. Murphy’s view, is that courts will largely only apply Auer deference to agency interpretations of ambiguous regulations in instances where they would have reached the same conclusion as the agency anyway.  Furthermore, as Ms. Murphy pointed out, Justice Roberts noted in a separate concurring opinion in Kisor that, given the constraints on the doctrine recognized by the majority, there is actually very little distance between the majority’s opinion and the dissent, which would have overruled Auer

Thus, according to Ms. Murphy, it is likely there will be few cases in the future in which Auer deference will continue to apply (and even fewer cases, if any, in which Auer deference will actually be outcome determinative).  Addressing potential future cases, Ms. Murphy also suggested that Kisor could foreshadow future limits on Chevron deference as well.

Justice Slaughter agreed with Ms. Murphy’s interpretation of Kisor, and speculated on why, in light of the constraints recognized by the majority, the Supreme Court did not instead opt to overrule Auer.  In Justice Slaughters’ view, by concurring with the four justices in the majority, Chief Justice Roberts took a “best of both worlds” approach: on the one hand, by declining to overrule Auer, Justice Roberts deferred to the principle of stare decisis; yet, on the other hand, the practical effect of Kisor is to limit judicial deference to administrative agencies going forward.

Further considering the import of Kisor on future administrative law cases, Justice Slaughter contrasted the approach taken by Justice Roberts with the Kisor dissenters: Justice Slaughter characterized Justices Gorsuch and Kavanaugh as preferring “revolutionary” change with respect to the administrative state.  By contrast, Justice Slaughter interpreted Kisor as suggesting that Justice Roberts, who is also perceived to be critical of deference to administrative agencies, would prefer to take more of an “evolutionary” or “incrementalist” approach to the doctrine.  Justice Slaughter likened this approach to recent decisions from the Supreme Court regarding abortion which, in his view, indicate that the Court, while disinclined to overrule Roe v. Wade, appears to be dismantling abortion protections “door jam by door jam.”  In a similar manner, Justice Slaughter predicted that the Court will likely incrementally dismantle its practice of judicial deference to administrative agencies.

Mr. Verrilli had a somewhat different take on Kisor.  In Mr. Verrilli’s view, the Kisor case underscored that the criticisms of Auer deference that led the Court to grant certiorari, on the question of whether to overrule Auer, were overrated.  The main such criticism, according to Mr. Verrilli, is that Auer deference could theoretically give agencies power to write broad regulations that could ultimately expand their power in the future.  Mr. Verrilli suggested, however, that part of the reason the Kisor court declined to overrule Auer was that it found little evidence that this theoretical problem actually exists. 

Although he noted that both Ms. Murphy’s and Justice Slaughter’s interpretations of the Kisor decision and predictions as to its future effects are reasonable, Mr. Verrilli emphasized that symbolism matters to the Supreme Court.  Thus, for Mr. Verrilli, the fact that the Supreme Court granted certiorari and then declined to overrule Auer is significant – it shows that the Court wants to project that the doctrine will have continued relevance in the future. However, according to Mr. Verrilli, because Auer deference was already a quite limited doctrine prior to Kisor, that case will ultimately have minimal, if any, effect on the doctrine.

With regard to future administrative law cases, Mr. Verrilli, like Justice Slaughter, highlighted the import of the addition of Justices Gorsuch and Kavanaugh to the Court.  Mr. Verrilli noted that the late Justice Scalia authored Auer and was a strong proponent of Chevron because, among other reasons, agencies, unlike the courts, are politically accountable.  However, noting that Justice Gorsuch, prior to his appointment to the Supreme Court, argued that Chevron should be overruled, Mr. Verrilli suggested that this political accountability concern is far less persuasive to Justice Gorsuch, as well as Justice Kavanaugh.

In addition to addressing Kisor, Auer, and Chevron, the panelists ended the session by briefly discussing Gundy v. United States, 588 U.S. __, 139 S. Ct. 2116 (2019), a case in which the Court declined to revive the non-delegation doctrine.  Ms. Murphy highlighted the case, noting that several justices indicated a willingness to consider reviving the doctrine, and suggesting that this may be another area in which administrative law may change in the future.  Mr. Verrilli agreed with this assessment, indicating that, with the addition of Justice Kavanaugh, who did not take part in Gundy, the Court may, indeed, be inclined to revive the doctrine; however, Mr. Verrilli warned that a revival of the doctrine would present to the Court a difficult challenge of articulating standards for determining unconstitutional delegation of authority.

Ultimately, the session was a fascinating discussion of what impact Kisor, as well as the addition of Justices Gorsuch and Kavanaugh to the Supreme Court, may have on the future of administrative law.  Thank you very much to the panelists and everyone who participated in organizing AJEI for making the session possible.

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Frederick Andrew Braunstein

Frederick Andrew Braunstein is a litigation associate in the New York office of Robins Kaplan LLP and serves as part of the firm’s Appellate Group.  Prior to joining Robins Kaplan, Fred clerked for the Hon. Elizabeth D. Laporte (N.D. Cal.) and also previously worked as a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP.  Fred obtained his J.D. from the University of Michigan Law School.