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Supreme Court to Administrative State: Enough is Enough

Chain breaking

I’ve only flipped through the opinions in Perez v. Mortgage Bankers Association and Department of Transportation v. Association of American Railroads. But I’ve read enough to see that they merit close study—very close study.

Result-wise, it looks like there’s not much to see here. In Perez, the Supreme Court dinged (as predicted here and elsewhere) the D.C. Circuit’s so-called Paralyzed Veterans doctrine, which held that sometimes, agencies must go through notice-and-comment proceedings to change an existing “interpretive” rule—even if that rule was initially adopted without notice and comment. That doctrine was obviously at odds with the text of the APA and the Supreme Court’s Vermont Yankee doctrine: courts can’t require agencies to adopt procedures in excess of the APA and the agencies’ organic statutes. In Department of Transportation, the Court set aside the D.C. Circuit decision that had declared certain regulatory arrangements governing Amtrak unconstitutional, on the grounds of a delegation of lawmaking power to Amtrak—a private corporation– by the lights of Congress. For constitutional purposes, the Supreme Court held, it doesn’t matter what Congress chooses to call Amtrak because it’s plainly a government entity. The Court remanded the case to the D.C. Circuit for a determination of delegation and Appointments Clause issues in that light.

Both decisions were unanimous. (Justice Sotomayor wrote in the first case, Justice Kennedy in the second.) Both seem plainly right. But that’s not the half of it: both decisions come with extended separate opinions by the conservative justices. While the opinions are technically “concurrences,” they read like so many calls to arms.

Perez involves something called Seminole Rock or Auer deference. I’ll spare you the cites: the doctrine says that courts owe deference (very similar in degree to Chevron deference) to an agency’s interpretation of its own regulations. The suspicion that this opens the door to all kinds of mischief isn’t new. (See my earlier post—link above.)[1] Justice Scalia first explained the point in a concurring opinion in a 2011 case called Talk America, and in a 2013 case (Decker v. Northwest Environmental Defense Center), two additional justices (Justice Alito and Chief Justice Roberts) expressed their interest in revisiting the Auer doctrine in an appropriate case. Justice Alito has now done so again in Perez. Justice Scalia goes further: that form of deference, he writes, makes a complete mockery of the entire APA. Justice Thomas—the author of Talk America, which applied Auer deference—goes further still: Auer deference makes mincemeat of the Constitution and the judiciary’s solemn duty to say what the law is. (Oh, yes: Justice Thomas cites Marbury. Also Philip Hamburger.)

The Amtrak case comes with a concurrence by Justice Alito that is best described as a superb road map for the railroad lawyers’ briefing on remand: here are three, four, five serious separation of powers and delegation issues, and at least some look fatal to the regulatory arrangements at issue. And another concurrence by Justice Thomas starts on the observation that “We have come to a strange place in our separation of powers jurisprudence” (no kidding) and then supplies a 27-page plea to return to first principles. That disquisition starts with Bracton, motors through Locke and Blackstone and again Philip Hamburger, and ends on a bracing note:

We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.

It’s fair to say that the concurring justices’ opinions are out of any proportion to the stakes in these particular cases. I’m no fan of Auer deference, but its only one of n misguided AdLaw doctrines. I’m no fan of Amtrak, either, and the regulatory regime at issue is probably unconstitutional. But unlike some other arrangements I could think of, it’s screwy rather than malignant; unique rather than systemic. Very plainly, these opinions are meant to be markers and signals.

For what, I don’t know. But I suspect we’ll find out sooner rather than later.

[1] As several of the concurring justices in Perez note, the Paralyzed Veterans doctrine aimed to curb precisely that mischief: if we appellate judges have to give agencies deference (because we can’t depart from Auer), at least we’ll insist on notice and comment. The argument is actually a bit more involved and better: a rule that gets deference sure looks like a rule with legal force (and not merely “interpretive”), and we can’t let agencies circumvent the APA procedures that are ordinarily required for such rules. The concurring justices in Perez note that the D.C. Circuit had the analysis right; it just chose the wrong “fix.” The correct fix, unavailable to the appeals courts, is to ditch Auer deference.

Reader Discussion

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on March 10, 2015 at 11:01:47 am

Gee, if only the Black Robes would be so gracious towards the Legislature and allow for considering the Legislatures own interpretation of its *regulations*. Oh, of course they can't - it would be too difficult as there are so many "intents", perhaps one for each vote.
Funny how it ends up that the governmental branch where power is most *consolidated* (Executive Agencies) somehow enjoys the benefit of interpretive deference by the Robed Ones.
Was this not a structure of government that was intended to limit consolidation of power (and as Hamburger argues, was it not also a government of *specialized* powers rather than consolidated ones).

Good to see Thomas is paying attention to Hamburger (and others, maybe even our own Grevey).

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gabe
on March 11, 2015 at 08:49:52 am

[…] Supreme Court to Administrative State: Enough is Enough […]

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Image of Judging What? | Freedom's Floodgates
Judging What? | Freedom's Floodgates
on March 11, 2015 at 14:24:36 pm

The judiciary and The Federal Administrative State

A "State" is an embodiment of authority. In former times in the History of Governments that authority was imposed by physical or ideological force; or combinations of those forces. What we classify today as "economic" circumstances have constituted a part of historic physical force.

In more modern times, in Western Civilization in particular, that embodiment of authority has been established by the passive acceptance or affirmative consent of those members of a society subject to that authority; or by demands for actions or benefits by particular interests of sufficient social or economic force within those societies.

Over something more than the last half of the 20th century, a new and separate body of sovereignty and governance, The Federal Administrative State has arisen in our society (which already had one form of established governance and authority). As noted, all “States” are embodiments of authority; and this authority of The Federal Administrative State was created through passive acceptance and affirmative consent of the public and the politically directed quests by particular interests for particular benefits and ameliorations from burdens, responsibilities and other obligations.

“We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.” Citing Justice Thomas

That is a mild review of the "home movie" of continual "embodying of authority" vested, not only legislatively, but judicially, into a "facility" (the "administrative system") making the facility into the institution that is the Federal Administrative State; now basically mature with its own internal guild-like hierarchal structure.

Most, if not all, of the authorities embodied in the Federal Administrative State are established by legislative delegation and its excrescences through the constitutionally delineated provisions for representation; all judicially confirmed. Any body of authority, a dictatorship, an absolute monarchy, the Town Selectmen, has to have an instrumentality for the exercise of its powers and to give effect to that authority. In the case of the Federal Administrative State, the same constitutional representatives have assigned the functions of the Federal Administrative State to be conducted through, and become functions of the mechanisms of the federal government, regardless of conflicts with, or impairments to, the constitutional delineations of those mechanisms.

Having judicially confirmed that embodiment of authority (which occurred by delegation) the judiciary has proceeded to confirm all that is "necessary or appropriate" to the imposition and exercise of that authority; including "deference" to the actions selected by the guild-like hierarchal structures; for what is the value of authority and its effectiveness without discretion for its exercise !

The constitutional representatives, with judicial confirmations, have assigned the functions of the Federal Administrative State to be conducted through, and become functions of the mechanisms of the federal government, regardless of conflicts with, or impairments to, the constitutional delineations of those mechanisms.

As a result, those mechanisms have become overloaded and stressed with the functions of the Federal Administrative State which far exceed their constitutional delineations. The further result is fragmentation, which is already reaching critical levels in fiscal conditions; with evidence growing that the entire system is becoming too big and too complex to manage.

It is enlightening to read that some justices are looking into the mirror of time. But, the fragmentation continues and nothing short of careful dis-embodiment of authority, reclamation of delegated powers AND responsibilities will serve to restore a singular Constitutional governance, which seems to be the best protection for individual liberty.

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Image of R Richard Schweitzer
R Richard Schweitzer
on March 16, 2015 at 09:44:54 am

[…] Supreme Court to Administrative State: Enough is Enough […]

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Image of The Conservationism You Can Believe In - Freedom's Floodgates
The Conservationism You Can Believe In - Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.