by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.
I. Delegation of Regulatory Power
The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.
Lately, however, there have been signs that several of the Justices are growing impatient with this settled equilibrium. Individual Justices – Chief Justice Roberts, and Justices Alito, Kennedy and Thomas – have written or joined opinions lamenting the power of contemporary administrative agencies and indicating a willingness to revisit precedent condoning Congress's broad transfers of power to agencies. City of Arlington v. FCC, 133 S.Ct. 1863 (2013) (Roberts dissent, joined by Alito and Kennedy); Dept. of Transportation v. Assn. of American Railroads, 135 S.Ct. 1225 (2015) (Alito concurrence); id. (Thomas concurrence). None of these opinions has attracted a majority of the Justices, but if a new Justice sympathetic to these concerns were to join the Court, the disquiet that has been expressed by individual Justices over the last few years could mature into majority holdings.
In theory, a reinvigorated nondelegation doctrine could pose risks to any grant of broad discretion to an administrative agency. In practice, it is hard to imagine the Court taking a bulldozer to the entire administrative apparatus. It seems more likely that the Court would deploy the doctrine to undo or narrow select regulatory regimes, such as those imposing large economic costs. Several judges who embrace a more robust nondelegation doctrine worry specifically about the threat that unchecked administrative power poses to individual liberty – meaning the liberty of regulated entities. They have not expressed similar concerns about the threat of administrative passivity to individual liberty, such as the threat that the withholding or withdrawal of health, safety and environmental protections poses to human freedom to live, work and play without facing undue risks created by other people. This asymmetrical concern might presage an equally asymmetrical application of a reinvigorated nondelegation doctrine.
A nondelegation claim has been raised in the legal challenge to the Obama administration's Clean Power Plan, which is pending in the D.C. Circuit.
II. Deference to Agency Interpretation
For many years, the Supreme Court has embraced a principle of deference to agencies' interpretations of the statutes they administer and the regulations they have issued. Under Chevron v. NRDC, 467 U.S. 837 (1984), when a statute is ambiguous, the Court will defer to a reasonable interpretation of that statute by the agency charged with implementing it. Under Auer v. Robbins, 519 U.S. 452 (1997), the Court will defer to an agency's interpretation of its own regulation so long as it is not "plainly erroneous or inconsistent with the regulation." Both of these decisions had precursors in earlier cases, but the principles of deference these decisions embraced have come to be known simply as "Chevron" and "Auer" deference.
The Court has in recent years cut back on Chevron deference in several ways. It has carved out a category of cases in which Chevron does not apply due to the nature of the authority given to, and exercised by, the agency in the particular case. United States v. Mead Corp., 533 U.S. 218 (2001). It has also declined to defer to agency interpretations based on circumstances such as the economic and political significance of the underlying legal issue, the centrality of the legal issue to the statutory regime, and the perceived lack of expertise of the agency in question. King v. Burwell, 135 S.Ct. 2480 (2015); Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014). In one case, the Court used its own notion of regulatory rationality to reject an interpretation of the Clean Air Act by the EPA. Michigan v. EPA, 135 S.Ct. 2699 (2015).
In addition, the same individual Justices who have expressed discomfort with broad delegations of power to administrative agencies have also recently expressed concern about Chevron. City of Arlington v. FCC, 133 S.Ct. 1863 (2013) (Roberts dissent, joined by Alito and Kennedy); Michigan v. EPA, 135 S.Ct. 2699 (2015) (Thomas concurrence).
In principle, cutting back on Chevron deference, or eliminating it entirely, should work against presidential administrations of all political stripes. In practice, however, the decisions that have already declined Chevron deference in particular circumstances give support to those who might asymmetrically refuse Chevron deference for ambitious regulatory action but grant it for passive or timid regulatory behavior. Lisa Heinzerling, The Power Canons, 58 William & Mary L. Rev. (forthcoming 2017).
Most of the regulations from the Obama administration working their way through the courts raise an issue concerning Chevron deference. The Supreme Court has before it a case, Esquivel-Quintana v. Sessions, raising the question whether Chevron deference trumps the rule of lenity in criminal cases.
Auer deference has also come under attack in recent years. As with Chevron, in some circumstances the Court has declined to apply Auer deference altogether. Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156 (2012). In other cases, individual Justices have argued that it is time to reconsider Auer deference. Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326 (2013) (Roberts concurrence, joined by Alito; Scalia concurrence/dissent); Perez v. Mortgage Bankers Assn., 133 S.Ct. 1199 (2015) (Scalia and Thomas concurrences). This Term, the Supreme Court had granted review of a case raising a question of Auer deference (Gloucester County School Board v. G.G), but it sent the case back to the lower court when the Trump administration reversed course on the federal policy toward use of school bathrooms by transgender students.