When I learned the outcome of the Supreme Court’s decision in Kisor v. Wilkie, a case seeking to tear down one of the pillars of federal administrative law, I quipped to my editor that my analysis of this case should be headlined “Elena Kagan is a motherfucking sorcerer.”
Kisor was supposed to be the first in a series of blows against federal agencies’ power to make regulations and interpret existing regulations. Without the power to meaningfully regulate under existing statutes, the presidency would become increasingly impotent; existing labor, anti-discrimination, health, and environmental laws would be severely weakened; and a dysfunctional Congress would almost certainly fail to update those laws — leaving behind a dream for radical libertarians and a nightmare for anyone who cares about simple things like clean air.
Instead, Justice Kagan managed to convince Chief Justice John Roberts to join a relatively moderate decision that, in her own words, is “not quite so tame as some might hope, but not nearly so menacing as they might fear.” Roberts did not join all of Kagan’s opinions — and he notably did not join the parts that read like a love letter to judicial humility — but the outcome in Kisor suggests that there is a meaningful distance between Roberts and the more nihilistic members of the court’s conservative majority.
Kisor is not a cause for celebration. But it is a cause for hope.
Before diving into the weeds of Kisor, it’s worth remembering a public appearance Justice Kagan made last September, where she warned that an increasingly partisan Supreme Court endangers its own legitimacy. The solution, Kagan said, is to take “big questions and make them small” — to form cross-partisan majorities that support narrow outcomes, rather than handing down partisan decisions that announce sweeping new rules.
Kagan also identified Chief Justice Roberts as a potential partner in this effort to find common, narrow ground.
Roberts and Kagan frequently disagree, and Roberts still votes with his conservative colleagues more often than not. But Kisor is a big win for Kagan. And it is one that few people saw coming.
Countless federal laws lay out a broad policy, then delegate to a federal agency the task of writing regulations that implement the details of that policy. Indeed, this basic structure — Congress sets the overarching goal and policy experts within agencies work out many of the details of how to achieve that goal — forms the backbone of much of American labor, environmental, and health care law.
Around the time that President Barack Obama moved into the White House, conservative groups such as the Federalist Society — the legal group which plays an outsized role in picking President Trump’s judges — grew disillusioned with this general framework, and for entirely predictable reasons. When someone like Ronald Reagan was president, conservatives such as Justice Antonin Scalia loved doctrines that empowered agencies because they allowed a conservative president to push conservative policies. But what’s sauce for the goose can’t be sauce for the gander if the gander is a Democrat.
Additionally, gerrymandering and Senate malapportionment ensure that, barring a Democratic electoral wave, Republicans will control at least one house of Congress and thus will be able to prevent Democrats from enacting legislation. So if the Supreme Court also strips agencies of their power to regulate, Democratic presidents will be little more than figureheads.
Kisor was supposed to be the first cut against agencies’ regulatory power. It involves a doctrine, commonly referred to as “Auer deference,” which provides that when an agency’s regulation is ambiguous, courts should defer to the agency’s own reasonable interpretation of that regulation. There are a number of reasons why this is the proper rule, and Kagan lays them out in a section of her opinion that is joined only by her liberal colleagues.
The drafter of a rule, Kagan notes, is more likely to know the rule’s proper meaning than judges. They are also more likely to understand the underlying policy that led to the rule, and to interpret it in a way that is consistent with that policy.
As an example of the sort of obscure knowledge and technical arcana of which judges aren’t likely to have command, Kagan cites a case asking whether a drug company “created a new ‘active moiety’ by joining a previously approved moiety to lysine through a non-ester covalent bond,” and how a particular federal regulation should be read in such a case.
“Take the more technical ‘moiety’ example. Or maybe, don’t,” Kagan writes in a particularly snappy part of her opinion, “If you are a judge, you probably have no idea of what the FDA’s rule means, or whether its policy is implicated when a previously approved moiety is connected to lysine through a non-ester covalent bond.”
And there’s a third reason why it is better to leave regulatory questions to agencies as opposed to courts. Agencies “have political accountability, because they are subject to the supervision of the President, who in turn answers to the public.” Courts don’t.
Roberts, again, does not join the parts of Kagan’s opinion laying out why Auer deference is a good idea. He also rather pointedly does join a section of Kagan’s opinion which explains the limits on Auer deference. It should only apply when a regulation is truly ambiguous, for example. And it should not apply when a new interpretation “creates ‘unfair surprise’ to regulated parties,” among other things.
Indeed, there is little doubt that, if Auer deference did not already exist, Roberts would never allow it to come into the world. But Roberts also joins a section of Kagan’s opinion emphasizing that stare decisis, the doctrine that courts typically shouldn’t overrule past precedents unless they have a very good reason to do so, requires keeping Auer alive.
Kisor asks us to overrule not a single case, but a “long line of precedents”—each one reaffirming the rest and going back 75 years or more. This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of times. Deference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law. . . . It is the rare overruling that introduces so much instability into so many areas of law, all in one blow.
There are reasons to fear that Kagan may not be able to hold onto the support of her frenemy Roberts in future cases. Though Roberts joins much of Kagan’s opinion, he writes separately to suggest that he may be willing to strike down a longstanding doctrine providing that courts typically should defer to an agency’s reading of a federal statute. That’s a much more important doctrine than the one at issue in Kisor.
The second reason to fear that Roberts and Kagan may split in future cases is that Roberts recently joined an opinion by Trump judge Neil Gorsuch — which called for a sweeping, if rather vague, overhaul of the power dynamic between the judiciary and the executive branch. That case was Gundy v. United States.
Read together, however, Roberts’ votes in Kisor and Gundy suggest that he is eager to weaken the administrative state, but not to destroy it as comprehensively as Gorsuch would likely prefer. That’s not good news for future Democratic presidents — or for believers in democracy generally. But is also means that liberals can hold onto a ray of hope.