Agency Deference After Kisor v. Wilkie

ARTICLES

Agency Deference after Kisor v. Wilkie

PAUL J. LARKIN, JR.*

ABSTRACT

In Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins the Supreme

Court directed federal courts to defer to an agency’s interpretation of a vague or

ambiguous rule. After two decades of criticism that those decisions effectively

transferred law-interpreting power from Article III courts to agency off‌icials, the

Court granted review last term in Kisor v. Wilkie to decide whether to overturn

those decisions. A badly fractured Court decided to completely rewrite rather

than overturn them. In essence, Kisor turned Seminole Rock and Auer into

Chevron deference. Yet, the Court did not decide whether the Administrative

Procedure Act forbids giving an agency any deference when it construes a law.

The result is that the Court has simply kicked the can down the road for perhaps

a few more terms.

This Article will summarize Kisor and explain what it portends for adminis-

trative law. The Article will also discuss the answers to three questions that will

arise in the near future in the application of Kisor and Chevron. First, what

effect does a statute known as the Congressional Review Act have on the defer-

ence issue? Second, should an agency’s interpretation of its organic statute and

own rules receive deference, not in an administrative proceeding or a civil law-

suit, but in a criminal prosecution? Third, is there a basis for treating differ-

ently the interpretations adopted by so-called “executive” and “independent”

agencies? Kisor turned out to be an inconclusive battle in the “Deference

War.” The f‌ighting will shortly resume, most likely when the Court answers one

of those three questions.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

I. THE DEVELOPMENT OF JUDICIAL DEFERENCE TO AN AGENCY’S

INTERPRETATION OF ITS OWN RULES . . . . . . . . . . . . . . . . . . . . . . . 109

* John, Barbara, and Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation;

M.P.P. George Washington University, 2010; J.D., Stanford Law School, 1980; B.A., Washington &

Lee University, 1977. I want to thank GianCarlo Canaparo, Miguel A. Estrada, Todd F. Gaziano,

Margaret A. Little, John Malcolm, Randolph J. May, Lee O’Connor, Amy Swearer, and Jim Tozzi for

helpful comments on an earlier version of this Article. The views expressed are my own and should not

be construed as representing any off‌icial position of The Heritage Foundation. That goes double for any

mistakes. © 2020, Paul J. Larkin, Jr.

105

II. THE KISOR DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

III. KISOR AND THE CONGRESSIONAL REVIEW ACT . . . . . . . . . . . . . . . . 126

IV. KISOR AND FEDERAL CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . 131

V. KISOR AND INDEPENDENT AGENCIES. . . . . . . . . . . . . . . . . . . . . . . . 140

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

INTRODUCTION

The Constitution created a tripartite form of government, with separate legisla-

tive, executive, and judicial branches, each one possessing distinct powers.

1

Their mission was to work independently to achieve together the goals for which

the union was created.

2

Government defense, regulatory, and welfare programs,

however, do not implement themselves. Although the Constitution created the

off‌ice of president, it would be “‘impossibl[e],’” as George Washington recog-

nized, “that one man could perform all the great business of the State.’”

3

After

all, although the Constitution empowered Congress to “establish Post off‌ices and

post Roads,”

4

the Framers did not expect that the president would deliver the mail

himself. Instead, the Constitution contemplated that Congress would create, and

the president would staff, “executive Departments”

5

with “Off‌icers of the United

States”

6

to assist the elected off‌icials serving the nation.

7

1. U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of

the United States, which shall consist of a Senate and House of Representatives.”); id. art. II, § 1 (“The

executive Power shall be vested in a President of the United States of America.”); id. art. III, § 1 (“The

judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and establish.”).

2. Namely, to “establish Justice, insure domestic Tranquility, provide for the common defence,

promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” Id.

pmbl.

3. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 483 (2010) (quoting 30

WRITINGS OF GEORGE WASHINGTON 334 (J. Fitzpatrick ed. 1939)).

4. U.S. CONST. art. I, § 8, cl. 7.

5. Id. art. II, § 2, cl. 1 (authorizing the president to “require the Opinion, on writing, of the principal

Off‌icer in each of the executive Departments, upon any Subject relating to the Duties of their respective

Off‌ices”).

6. Id. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the Advice and Consent of

the Senate, shall appoint Ambassadors, other public Ministers and Consuls . . . and all other Off‌icers of

the United States, whose Appointments are not herein otherwise provided for, and which shall be

established by Law”).

7. U.S. CONST. art. I, § 8, cl. 12 (“The Congress shall have Power . . . To raise and support Armies”);

id. art. I § 8, cl. 13 “The Congress shall have Power . . . To provide and maintain a Navy”); id. art. II, § 2,

cl. 1 (The President shall be Commander in Chief of the Army and Navy of the United States”); id. art.

VI, cl. 3 (stating that “all executive and judicial Off‌icers, both of the United States and the several states,

shall be bound by Oath or Aff‌irmation, to support this Constitution”); id. art. III, § 3 (“[The President]

shall take Care that the Laws be faithfully executed”).

106 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:105

Ref‌lecting that reality, the federal government has had civilian and military

personnel since the nation’s earliest days.

8

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.

9

Disagreements between government off‌icials and the public over the meaning

of laws that agencies implement often lead to litigation in federal court.

10

When

that happens, the courts have the responsibility to decide which party has the bet-

ter of the argument and enter judgment in its favor.

11

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.”).

11. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

2020] AGENCY DEFERENCE AFTER KISOR V. WILKIE 107