An Anti-Agency Mood?

We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.

Earlier this month, Justice Thomas exhibited a dramatically anti-agency attitude in his separate opinion in Department of Transportation v. Association of American Railroads. Repeatedly citing Professor Philip Hamburger’s 2014 book Is Administrative Law Unlawful?, along with a number of other scholarly sources, Thomas presented an originalist argument that “generally applicable rules of private conduct” may be generated only legislatively, not through executive agencies. This conclusion would seem to require a major reduction in the administrative state, which Thomas described as a system that “concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus.”

This month also saw an escalation in the justices’ recent skepticism toward what is sometimes called “Seminole Rock deference” or “Auer deference”—that is, the idea that an agency should receive deference as to the meaning of its own regulations. After several justices, including Justice Kagan, had expressed qualms about it, Justice Scalia came out against this doctrine in 2013—even though he had written the opinion for the Court in Auer. A couple weeks ago, in Perez v. Mortgage Bankers Assn., Justice Thomas wrote his own opinion against the doctrine, and Justice Alito added that he would “await a case in which the validity of Seminole Rock may be explored.”

Also in Mortgage Bankers this month, Justice Scalia one-upped himself by reiterating his critique of Seminole Rock in a way that called into question the absolutely foundational doctrine of Chevron deference, or judicial deference to agency interpretations of statutes. Amplifying a longstanding strand in his writings on agency deference, Scalia wrote: “Heedless of the original design of the [Administrative Procedure Act], we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations,” including by holding “that agencies may authoritatively resolve ambiguities in statutes. [cites Chevron].” Scalia eventually tried to distinguish Seminole Rock from Chevron, but not before noting that a certain problem is “perhaps insoluble if Chevron is not to be uprooted.”

Scalia’s new discomfort with Chevron is particularly remarkable because Scalia has often been the leading defender of a robust Chevron doctrine in the face of those who would scale it back. For example, in 2013 Scalia wrote the pro-deference majority in City of Arlington, Texas v. FCC. By contrast, the Chief Justice’s dissent, joined by Justices Kennedy and Alito, observed that “Chevron is a powerful weapon in an agency's regulatory arsenal” and that while “[i]t would be a bit much to describe the result as ‘the very definition of tyranny,’ [t]he danger posed by the growing power of the administrative state cannot be dismissed.” This Chevron unease is still in the air.

Also earlier this month, Justice Kennedy exhibited somewhat similar sentiment during the much-watched oral argument in King v. Burwell. Consider the following salient and widely reported remark, which seems somewhat like an extension of FDA v. Brown & Williamson: 

JUSTICE KENNEDY: Well, if [the relevant provision of the Affordable Care Act] -- if it’s ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?

True, there are several distinct lines of doctrine involved in the quotes above, and some of the remarks are ambiguous or tentative. That makes it possible that the present anti-agency mood isn’t a single trend so much as a coincidental confluence of trends that could just peter out.

Supporting that possibility, agencies have won some big recent cases, such as City of Arlington (per Justice Scalia) and EPA v. EME Homer City (joined by the Chief Justice and Justice Kennedy). Meanwhile, there have recently been some closely argued pending cases, including the Michigan v. EPA case argued just last week. And it's notable that the more liberal justices, who may have warmer views of the current administration, don’t seem to share equally in the recent shift in outlook.

Alternatively, it’s possible that what seems like an anti-agency mood actually reflects somewhat broader trends. For example, maybe the Court is generally exhibiting greater skepticism of the government, as in recent cases where the Court has perceived overzealous prosecutors. Or perhaps the better way to view these events is that the Court is getting (even) more comfortable with its own supremacy and is therefore less inclined to defer across the board.

So in calling recent events evidence of a mood, I mean to ask, not answer, whether that mood really exists, and whether it will have any effect on the law.