Agency Deference After Kisor v. Wilkie

Published date01 January 2020
Date01 January 2020
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 AGENCYS
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

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