CHAPTER 10 KEEP CALM AND CARRY ON--JUDICIAL DEFERENCE TO AGENCY INTERPRETATIONS

• Jurisdiction: United States

Natural Resources Development and the Administrative State: Navigating Federal Agency Regulation and Litigation
(Feb 2019)
CHAPTER 10
KEEP CALM AND CARRY ON--JUDICIAL DEFERENCE TO AGENCY INTERPRETATIONS
Evan A. Young
William J. Seidleck
Baker Botts LLP
Austin, TX ^*

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EVAN YOUNG is a Partner with Baker Botts LLP, in Austin, TX. His practice focuses on trial and appellate litigation. He is Chair of the firm's Supreme Court and Constitutional Law Practice. Mr. Young has argued cases before both the Supreme Court of the United States and the Supreme Court of Texas. Ranging from those courts to state trial courts, he has represented clients across the country before every level of the state and federal judiciary. Before joining Baker Botts, Mr. Young worked as a lawyer in the judicial and executive branches of the federal government. He served as a law clerk to Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, and then to Justice Antonin Scalia at the U.S. Supreme Court. In 2006, after his clerkship with Justice Scalia ended, Mr. Young became Counsel to the Attorney General at the U.S. Department of Justice, serving in the Office of the Attorney General under Attorneys General Alberto R. Gonzales and Michael B. Mukasey. While on the Attorney General's staff, he accepted a detail to the U.S. Embassy in Baghdad, Iraq, where he was the Deputy Rule of Law Coordinator. In that position he worked to assist the Iraqi government in its efforts to strengthen its legal regime, including, for example, its courts and prison system. He returned to Texas and joined the Austin office of Baker Botts in 2009. Mr. Young is currently the Chair of the State Bar of Texas Business Law Section. He was nominated by Governor Abbott and confirmed by the Texas Senate as a member of the Texas Judicial Council, and was appointed by the Texas Supreme Court to the Supreme Court Advisory Committee. He has taught Federal Courts at the University of Texas School of Law every spring semester since 2015, and was voted Professor of the Year in 2016. He is an Elected Member of the American Law Institute and a frequent speaker at legal conferences.

Introduction

What was once a comparatively arcane question limited to administrative-law specialists has burst onto the wider legal scheme: when and how must courts defer to agencies' interpretations of statutes and regulations? The nomination and confirmation of Justice Neil M. Gorsuch, a known and vocal advocate of marginalizing such deference, created a realistic opportunity that the Court might revisit some key administrative-law precedents. The subsequent appointment of Justice Brett M. Kavanaugh enhanced the prospect. The Court's announcement in December 2018 that it would hear a case for the sole purpose of reconsidering one such doctrine--deference to an agency's interpretation of its own regulations--removed any doubts that something is brewing, at least for now.

Everyone attending the conference for which we have prepared this paper is deeply familiar with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., probably to the point of having the full citation memorized (it's in the footnote if not).¹ But we start with a very brief refresher so that we will all be on the same page. In Chevron, the Supreme Court announced a standard for courts to use when confronting a statute that a government agency has interpreted. Essentially, the Court articulated a statutory-construction presumption: if the statute is silent or ambiguous about the substantive matter at hand, then courts will presume that Congress intended the agency to fill the gap or prescribe the proper resolution of the ambiguity.² The first inquiry--often called "Chevron Step One"--is to determine whether a statute is silent or ambiguous in the first place. If so, the agency's reasonable interpretation of the statute then is given controlling weight.³ Weighing whether the agency's interpretation is permissible is "Chevron Step Two." In short, courts under Chevron must defer to an agency's reasonable interpretation of a statute if that statute does not speak to the relevant issue.⁴ On the flip side, if the statute is unambiguous, then Step Two is never reached; the statute's plain meaning trumps a contrary agency interpretation.⁵ Likewise, no deference is given if the agency's interpretation of an otherwise ambiguous statute is unreasonable.⁶ As we describe below, this framework has become a flashpoint in the debate about the role of federal agencies.

At first glance, Chevron's framework appears to strike a laudable balance. Agencies are supposed to develop administrative expertise and are in theory accountable to elected leaders. If a complex regulatory statute is unclear on the margins, agencies should be able to render

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authoritative interpretations better than (and with greater legitimacy than) unelected judges who have little or no technical expertise, lack the ability to go beyond the record of a given case to determine what policy makes the most sense, and lack the democratic authorization to make policy even if they could. Better still, Chevron promised that courts would not completely abdicate their role of judicial review. After all, if the usual modes of statutory interpretation show that no genuine ambiguity in a statute exists, then courts will just apply the statute as written. In principle, Chevron would help judges stay in their (important) lane.

Over thirty years of experience, however, has shown that as elsewhere in life, theory and practice do not always converge here. Chevron's practical effects challenge its theoretical underpinnings. Courts often appear willing to give up too soon, confusing complexity for ambiguity, thus deeming complicated statutes ambiguous without much effort to deploy traditional statutory-construction tools to seek a statute's plain meaning. Even worse, it sometimes appears that judges' philosophical predilections can affect whether they view a statute as ambiguous, and neutral methods for determining ambiguity vel non have proven elusive.

Given the checkered results, a growing chorus of prominent jurists and academics have begun calling for a doctrinal reexamination. Justices Gorsuch and Kavanaugh have identified what they regard as Chevron's deficiencies and suggested ways to mitigate them. Their presence on the Court--combined with the seemingly increasing skepticism of Chevron by Chief Justice Roberts, Justice Thomas, and Justice Alito--should make the Court's administrative-law docket over the next decade a tantalizing watch.

An analogue of the Chevron doctrine is the so-called doctrine of "Auer" or "Seminole Rock deference."⁷ If a regulation is ambiguous, then the court will defer to the agency's reasonable interpretation of the regulation--its own handiwork, after all. In other words, Auer deference applies Chevron's mode of analysis to regulations, sort of like a nesting doll--the statute is ambiguous, so we defer to a regulation; the regulation is ambiguous, so we defer to (perhaps) an interpretive rule; and (perhaps) onward.

Like Chevron, Auer seems sensible at first blush--perhaps, at that first glance, even more sensible. Looking to the purveyor of a regulation for an authoritative interpretation appears both logical and practical. But thoughtful scholars and jurists have raised alarm that Auer may be even more problematic than Chevron itself, at least when taken alongside Chevron. That is because Auer signals in advance that an agency has much to gain by embedding ambiguity into rules. Principles that may be too hard (politically or otherwise) to achieve via notice-and- comment rulemaking, for example, might be accomplished by means of a vague rule that the agency can then (freed of the rulemaking rigors) interpret as it likes. Such a possibility, many argue, concentrates too much power in the hands of agencies--who get to write, interpret, and enforce their regulations with minimal judicial oversight.

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The Supreme Court has agreed to rethink Auer--whether to overrule it (and Seminole Rock) is the sole question that the Court agreed to hear in Kisor v. Wilkie.⁸ How the Court rules in Kisor will likely either intensify the effort to reconsider Chevron or else drain that effort of its nascent vitality.

In anticipation of Kisor, and the possible changes that it portends, this paper hopes to illuminate the debate about the future of Chevron and Auer. Part I gives a necessarily limited view of the history surrounding the Chevron-deference debate--looking both at academic literature and relevant Supreme Court cases dealing with Chevron. Part II then examines the problem with using textual ambiguity as the triggering mechanism for deciding when an agency's interpretation becomes authoritative--and how this issue has caused many judges to push for reexamining Chevron and Auer. Part III looks at how the Justices likely to play a crucial role in determining the future of the doctrine have approached it thus far. Finally, Parts IV and V discuss how the doctrine might change.

I. History of the Debate on Judicial Deference to Agencies

Prior to Chevron, courts were relatively free to disregard the interpretations of administrative agencies--mostly because of a "mishmash"⁹ of Supreme Court decisions that gave no firm guidance on how courts should review challenges to agency interpretations.¹⁰ Some cases among the "mishmash" could readily serve as the forebears of Chevron. Since the 1940s, "there had been a line of Supreme Court authority that reviewing courts should defer to agencies' constructions of their governing statutes so long as those constructions were 'reasonable.'"¹¹ Yet "[i]n contrast to the line of cases which called for judicial deference to agency interpretations was another, equally impressive, line of Supreme Court decisions in which the Court freely substituted its own judgment for...