A De Novo Critique of Administrative Deference

LUIS M. REYES—Administrative agencies are lawmaking bodies created by Congress and are entrusted to enforce the mandates of particular congressional statutes. Yet because these statutes often terse or vague, agencies also promulgate new rules and regulations to supplement ambiguities. The judicially created doctrine of administrative deference serves to give the benefit of the doubt to an agency’s interpretation when it’s challenged in court. Though this may seem complex, most parents can relate to the efficiencies created by administrative agencies.

I. Parenting: The Layperson’s Administrative Agency

Let us set the scene: There are two parents and their two children, Alex and Benny. Parent A generally makes the rules, and Parent B enforces them. But because they both have such busy schedules, Alex is generally entrusted to look after Benny, making sure he doesn’t “do anything crazy.” One day, while both parents are gone, Alex forbids Benny from eating a whole pint of double fudge chocolate ice cream, saying “that’s crazy, you’re going to get sick.” Benny, taking issue with this interpretation of what “crazy” is, complains to Parent A, who gives the following response: “Even if I were to think that eating a pint of ice cream isn’t crazy, Alex isn’t unjustified for thinking that. Sorry, the rule stands.”

Functionally, the same conversation plays out between courts, administrative agencies, and people seeking redress. The parents are like the three branches of government, and administrative agencies are like Alex, interpreting, clarifying and enforcing delegated responsibilities. Courts also defer to agency interpretations that are not clearly unreasonable, even if the court would reach a different interpretation than the agency. While this practice may be fine for parenting, it is no so for the courts.

II. The Judiciary: The Final Say on What the Law Is

Since John Marshall’s famous statement in Marbury v. Madison, “[i]t is emphatically the providence of the judicial department to say what the law is,” the power to definitively interpret the law has belonged to courts. Courts review question of law de novo, meaning “anew,” with no presumptions of who’s interpretation is correct. But administrative deference turns this practice on its head. While courts are usually entrusted to “say what the law is,” they defer to agency interpretations of legal text in two situations: The first—Chevron deference—when an agency interprets the text of the statute it is entrusted to enforce; and the second—Auer deference—when an agency interprets the text of its own regulations.

III. The Separation of Powers Problem

Administrative agencies can wield the power of all three branches of government. Congress delegates in part it’s power to legislate to these agencies. However, these agencies are actually part of the Executive, as they enforce these laws. But in enforcing the laws, they must interpret them. When combined with the principle of administrative deference, this last power is the most problematic.

In other contexts, the Supreme Court has struck down congressional expansion of presidential power it deemed unconstitutional. In Clinton v. City of New York the Supreme Court invalidated a statute giving the president power to line-item-veto bills. The court held that only the Legislature has the authority to rewrite laws, and cannot transfer that power to the Executive by authorizing line-item-vetoes. While the crux of the court’s problem was that the statute violated the Presentment Clause, central to this idea is that the Constitution provides structural protections that must be faithfully adhered to. While Justice Jackson’s Youngstown concurrence is cited for the proposition that the Executive’s power is at its apex with explicit congressional approval, Congress cannot approve what is contrary to the Constitution.

Similarly, administrative deference can amount to an unconstitutional delegation of the judiciary’s power to create legally binding interpretations of law. Article III reserves the “judicial power of the United States” to the Supreme Court and other courts which “Congress may…establish.” And because the crux of the judicial power is to define what the law is, that power may not be abdicated or delegated to administrative agencies. Courts have the responsibility not just to strike down plainly erroneous interpretation, but to say what the most reasonable interpretation is. Thus deferring to agencies’ interpretations because they are not plainly erroneous though not in line with what the court would reach is problematic if not patently impermissible.

In Perez v. Mortgage Bankers Association, Justice Thomas recently warned of the dangers of not “vigilant in protecting the structures of our Constitution.” Referring to Auer deference, he argued that “[a]lthough an agency’s interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check.” He further argued that the doctrine is an unconstitutional delegation of judicial power:

Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord ‘controlling weight’ to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That deference amounts to a transfer of the judge’s exercise of interpretive judgment to the agency.

While Justice Thomas has been the most recent Justice to voice his concerns over the constitutionality of Auer and Seminole Rock deference, he is not alone. Justice Roberts’ dissented in FCC v. City of Arlington on the basis that courts should not defer to an administrative agency’s interpretation of its own jurisdictional reach; and during oral argument for Christopher v. SmithKline, Justice Scalia and Justice Breyer’s questioned whether an administrative agency could abuse administrative deference by filing amicus briefs across the country and espousing what it found to be convenient interpretation at the time.

Even if administrative deference can create efficiencies, the Constitution becomes meaningless words on papers when structural safeguards are so easily circumvented. Though the doctrine was initially well received by jurists, there have been an increasing number of challenges. Perhaps it’s time for a de novo review. Even Scalia, who penned the Auer majority opinion in 1997, advocated for a review of the doctrine just over a decade later.

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