Essays analyzing the Supreme Court's (narrow) upholding of Judicial deference to agency rule making - ScotusBlog

For a cheat sheet as to which arguments you are interested in reading first, I thought I'd give a brief overview of the analysis as I read it. I'll edit this as I go along.

Ronald Liven's essay reads positively of the auer deference doctrine, and the author wrote an amicus brief in support of the precedent. His overview of each of the two main opinions (kagan's and Gorsuch's) presents the debate this way:

The two principal opinions were far apart on the core question of whether deference to agencies’ interpretations of their own regulations is desirable. Kagan listed a variety of factors that can support an affirmative answer, including the agencies’ scientific expertise, policymaking competence and political accountability; moreover, in some instances the agencies may have direct knowledge about what a regulation was intended to mean. Gorsuch disputed these arguments and also claimed that the Administrative Procedure Act and the Constitution seem to forbid judicial deference on these issues.

To Liven, this debate is more about the future of stare decisis as a judicial framework (especially concerning unpopular precedents among conservatives such as Roe v. Wade, Roe v. Wade, Roe v. Wade, and that one about abortions) and about the administrative state's ability to exist. This second point he makes explicit when he says:

In contrast, Gorsuch’s concurring opinion in Kisor displays a viewpoint that, in historical terms, is relatively new at the Supreme Court level: full-scale, heated opposition to the very existence of judicial deference. This reflects the disillusionment with the administrative state that has become such a prominent feature of our politics during the past decade. In this respect, at least, President Donald Trump apparently got exactly what he was seeking when he appointed Gorsuch to serve on the court.

Liven ends the essay by pointing out that there can be a feeling that the debate with Auer is about total and sweeping judicial deference to the executive branch or none at all, whereas neither Kagan's ruling nor relevant clarifying precedent nor anyone arguing in support of the doctrine believes it to be broad, but subject to a myriad of limitations.

Thomas Merrill, in contrast to Liven, wrote an amicus brief in support of overruling the Auer deferential doctrine. For Merrill, neither the majority nor the dissent partial concurrence believed that Auer should remain binding precedent, and neither the majority nor the dissent partial concurrence believed the executive branch should have no power to interpret ambiguous legislation for regulating purposes:

Instead, all nine justices appeared to believe that a more contextual approach is required, applying traditional tools of interpretation to determine whether the regulation is genuinely ambiguous, and even then, deferring to the agency view only after considering such factors as whether the agency interpretation is authoritative, the agency has expertise in the matter, the agency interpretation is well considered, and the interpretation has been consistently maintained.

What Merrill believes the debate was about is the appropriate strength of what he calls the administrative state, and it came out through how the justices chose to frame their overruling of the old Auer precedent:

The Kagan approach (which effectively garnered five votes on this point) would thus preserve the label “Auer deference” for the new standard of review. Writing for the remaining four conservatives, Justice Neil Gorsuch argued that Auer should be overruled, and should be replaced by the contextual standard of review associated with Skidmore v. Swift & Co. This would have eliminated the name “Auer deference” and substituted in its place “Skidmore deference.”

Merrill believes the justices effectively ended roughly at the same spot but for this difference of framing. He outlines the steps that Kagan's approach requires, through Chevron v. National Resources Defense Counsel, and then compares to the steps that would've been taken under Skidmore. The critical difference, in his view is that the new Auer is an all-or-nothing decision based on a myriad of conditions whereas Skidmore would present a "sliding scale" for judges to use for interpretation:

The more the factors favor the agency, the more “persuasive” the agency view becomes, but at no point is the court compelled to adopt the agency view.

Assuming his interpretation is correct, the largest difference between the standards for Merrill is the fact that Skidmore has been around and been being applied in other contexts since 1944 whereas Kagan's new Auer standard is effectively new and untested. That uncertainty will work itself out in the courts, but it was the uncertainty that tipped Merrill's hand in favor of Gorsuch's approach.

If you're still with me here, if you're thinking by this point that the general thrust of Merrill's argument is about painting this decision as small and inconsequential, we're on the same page. Merrill believes that liberal reluctance to explicitly overturn previous cases is driven by anxiety about Roe v. Wade (duh). What he says on that point, however, is:

My view is that the agitation about overruling Roe is largely artificially contrived. Roe was effectively overruled in Planned Parenthood v. Casey, which adopted a contentless “undue burden” standard for reviewing abortion regulations. This allows the Supreme Court to give a thumbs up or thumbs down to virtually any regulation, obviating the need to revisit ultimate questions. Unless the court wants to make itself the object of extreme controversy, it will continue to follow Casey, and leave Roe to gather dust.

Effectively, Merrill thinks the battle is already over on Roe v. Wade, and that the court is looking more to avoid the PR nightmare involved with the public's fair of an explicit overturning.

(Edit, next article)
Daniel Waters had nothing to do with the case, but he teaches law at Penn State, and his essay reads more about the difficulty for conservatives who believed they finally had a court they could rely on to overturn all the precedents they hate so much:

Although the court’s narrow holding retaining (and restating) Auer deference looks on its face much like the anti-climactic decision in Lucia v. Securities and Exchange Commission last term, it has much bigger implications. Given the larger context, the failure to jettison Auer deference feels like a major turning point in the conservative legal movement’s campaign against the administrative state. Gorsuch is right that this was supposed to be the easy case, and the result here does not bode well for the harder cases coming down the pike.

This is to say, the chief problem for conservatives who believed this was a done deal is Chief Justice and firm institutionalist John Roberts:

But in his stark reliance on stare decisis as the sole basis for retaining Auer, Roberts made it crystal clear that there are immovable barriers to his participation in the actual deconstruction of the administrative state.

Waters believes that Chief Justice Roberts takes his role in leading the Supreme Court seriously, and will actively vote to protect stare decisis when he must, even if he disagrees with the precedent itself. As evidence of this, Waters points to last week's ruling in Gundy v. United States, where Roberts joined the minority in dissent after Alito joined the majority in result.

Ultimately, through Roberts, Waters believes that it was when given the opportunity to engage in a rollback of the administrative state, the Supreme Court (primarily through Roberts' vote), opted against action. As Waters concludes:

Faced with the real consequences of its actions, the Supreme Court blinked. As it turns out, the court is as frozen between “administrativism” and “anti-administrativism” as is the body politic.

Eric Schmidt, attorney general of Missouri is more critical of the majority's decision. Schmidt is a vocal critic of several federal agency deference doctrines involved, including Auer and Chevron. The biggest rub for Schmidt is that unelected officials would get to decide laws and policies in a place unaccountable to democratic forces:

The application of these doctrines violates principles of federalism by permitting unelected federal bureaucrats to pre-empt state laws, outside the process of bicameralism and presentment prescribed by the U.S. Constitution. And these doctrines undermine the separation of powers by granting binding interpretive authority to the executive branch.

Schmidt grants that the majority opinion tried to offer limits onto what, in his view, was Auer's tipped hand in favor of the executive branch, but he believes the specific solution may end up being worse than what it is designed to replace. Schmidt believes that the five conditions he identifies in Kagan's ruling will lead to a larger body of litigation to sort out the meaning of the text, litigation that would not be necessary if the court imply overturned Auer and embraced Skidmore as Gorsuch argued for in his minority partial concurrence. He further believes the threshold requirements (rather than Skidmore's sliding scale) would continue to exacerbate the legitimacy problems he believes to be inherent to Chevron and Auer's respective doctrines.

He is, at least, happy that the conservative judges (Roberts and Kavanaugh, in separate concurring opinions) continue to be open to the project of overturning Chevron.

Michael Herz is another writer who doesn't appear to have any direct connection to Kisor v Wilkie. Herz focuses initially on the history of conservative criticism of Auer and its associated body of law, between a 1996 academic article and Justice Scalia's first explicit criticism of the doctrine in 2011 (as the author of the original Auer opinion).

Scalia invoked Manning and also decried Auer as inconsistent with separation of powers in that it effectively makes the rule-writer the rule-interpreter. The ensuing years saw some additional shots in concurring opinions by Scalia and others as well as modest chipping away in majority opinions (no Auer deference for interpretations of regulations that simply parrot statutory language; no Auer deference for interpretations that could not have been foreseen and upset strong reliance interests).

Herz reviews the judicial breakdown of the vote well and goes into explaining the arguments presented in Kagan's majority opinion, Roberts' partial concurrence with Kagan's majority opinion, Gorsuch's "partial concurrence" (though he notes that it tonally mirrors dissents), Kavanaugh's concurrence with Gorsuch's opinion.

In short, the opinion for the court (a) catalogues the limitations on Auer and (b) rests solely on stare decisis as the reason not to overrule it. Kagan’s defense of Auer on the merits gets only four votes. Moreover, the chief writes a brief separate concurrence to suggest the substantive gap between Kagan and Gorsuch, though real, is not as large as all that.

After reviewing Kagan's opinion, Herz transition's to Gorsuch's opinion, which he notes immediately is full of grand, sweeping rhetoric about personal bravery and fortitude. Substance wise, Herz says:

Gorsuch is also unimpressed by the majority’s invocation of stare decisis. Here it seems to me he is on pretty strong ground. If Auer is wrong, principles of stare decisis should not stand in the way of discarding it: It is about methodology rather than substance, reliance interests are minimal or nonexistent and the Supreme Court itself has never carefully thought it through.

... Here, the justices’ views of the one are replicated in their discussion of the other. Kagan calls for restraint in second-guessing both agencies and prior courts; Gorsuch does not want to defer either to agencies or to judicial predecessors. He wants judges to make decisions on their own; for him, judicial independence means a kind of judicial isolation.

To better explain this particular division in the court, Herz looks as many of the other authors here have to Gundy v United States, which was a 5-3 decision made last week in which Justice Alito joined the liberal four justices in result (and did not concur with their opinion). The opinions between Kagan and Gorsuch in Gundy mirror the opinions of Kisor, with Kagan calmly defending the restrained approach and Gorsuch ranting about separation of powers.

The final paragraph ends up doing most of the interpretive work of the whole essay, explaining what's going on here, Herz writes:

Why, then, does the Auer debate break out along familiar ideological lines? The answer can only be because the justices perceive more at stake than deference. As Gillian Metzger has pointed out, the defining feature of the current period is “anti-administrativism.” Agency power is suspect per se. Anti-administrativism is driving the Gorsuch opinions in both Gundy and Kisor. For now, both decisions resulted in the preservation of the status quo. But there is nothing secure about these hair’s-breadth victories.