Reflecting that reality, the federal government has had civilian and military
personnel since the nation’s earliest days.
These officials are responsible for the
day-to-day execution of whatever laws Congress has assigned to their depart-
ment, and the successful completion of their daily tasks is critical to the effective
operation of government. To complete their mission, federal officials must neces-
sarily interpret and apply whatever statutes govern their actions. Nowadays,
agency officials must also comply with whatever rules and other relevant docu-
ments their agencies generate to advise federal officials and the public how the
federal bureaucracy will and should implement congressional programs.
Disagreements between government officials and the public over the meaning
of laws that agencies implement often lead to litigation in federal court.
that happens, the courts have the responsibility to decide which party has the bet-
ter of the argument and enter judgment in its favor.
When any federal regulatory
program is involved, a recurring issue is how the agency officials responsible for
implementing or administering the law have interpreted it. The agency might
have drafted the legislation, or at least been consulted by Congress or the
President during its nascent period, so agency personnel might know why the
statute was necessary, or at least useful. The agency also has the chore of making
the statute work, so the responsible officials might know better than anyone else
whether the statute remedies whatever problem Congress and the President hoped
to eliminate by passing it. Of course, Congress could have passed the statute long
before anyone thought to ask the agency what it believed that the statutory terms
mean or how it is working. The people who answer that question might also have
an entirely different political agenda than the ones who actually implement that
law. Nonetheless, what an agency thinks of the effectiveness of its organic statute
8. See, e.g., MATTHEW A. CRENSON, THE FEDERAL MACHINE: BEGINNINGS OF BUREAUCRACY IN
JACKSONIAN AMERICA (1975); JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE
LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW (2012); WILLIAM E. NELSON, THE
ROOTS OF AMERICAN BUREAUCRACY, 1830–1900 (1982). Even justices of the Supreme Court of
the United States held multiple roles in the early days of the republic. John Jay was the first Chief Justice
of the United States and the ambassador to England, and in that capacity he negotiated the treaty ending
the Revolutionary War. John Marshall was simultaneously Chief Justice and Secretary of State, as well
as a member of the Sinking Fund Commission, which had the responsibility for addressing the
Revolutionary War debt. Act of Aug. 12, 1790, ch. 47, 1 Stat. 186; Mistretta v. United States, 488 U.S.
361, 398–99 (1989); Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 SUP.
CT. REV. 123; Peter Alan Bell, Note, Extrajudicial Activities of Supreme Court Justices, 22 STAN. L.
REV. 587 (1970).
9. The number of rules and documents is enormous and grows incessantly. See Kisor v. Wilkie, 139
S. Ct. 2400, 2446–47 (2019) (Gorsuch, J., concurring in the judgment) (“Now, in the 21st century, the
administrative state wields vast power and touches almost every aspect of daily life. Among other
things, it produces reams of regulations—so many that they dwarf the statutes enacted by Congress. As
of 2018, the Code of Federal Regulations filled 242 volumes and was about 185,000 pages long, almost
quadruple the length of the most recent edition of the U. S. Code. And agencies add thousands more
pages of regulations every year.”) (footnotes and internal punctuation omitted).
10. It’s the American way. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 257 (Harvey
Mansfield & Delba Winthrop trans. & eds., 2000) (“There is almost no political question in the United
States that is not resolved sooner or later into a judicial question.”).
2020] AGENCY DEFERENCE AFTER KISOR V. WILKIE 107