Daniel Walters is an assistant professor of law at Penn State Law.

The first line in Justice Neil Gorsuch’s partial concurrence in Kisor v. Wilkie says it all: “It should have been easy for the Court to say goodbye to Auer v. Robbins.” Here, Gorsuch betrays a hint of chastened bewilderment in an otherwise fiery, confident performance. Even before Gorsuch and Justice Brett Kavanaugh joined the Supreme Court, the court’s other conservatives assumed that Auer deference was “on its last gasp.” Many observers had considered James Kisor’s plea to overturn Auer deference a fait accompli, given the current composition of the court.  The only question that remained was just what the result in Kisor would foreshadow about future challenges to Chevron deference.

Yet, in a decision that surprised nearly everyone, the court turned back the tide and declined the long-awaited invitation to do away with Auer deference, with Chief Justice John Roberts offering the pivotal vote on stare decisis grounds. 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.

To be sure, just last week in Gundy v. United States, a near-majority of the court, including Roberts, put out a feeler for reviving the nondelegation principle—a move that could accomplish all that eradicating Auer deference would and more. 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. As Adrian Vermeule argued after Gundy, Roberts may say one thing in a “safe dissent or concurrence,” but might be compelled by “role morality” to say something very different when the stakes are real. Kisor certainly seems to vindicate Vermeule’s take. Suffice it to say that overcoming stare decisis will be a necessary step in every effort to undo the administrative state by judicial fiat. As of now, the best evidence suggests that Roberts is unwilling to go down that path even in a case where the change would be far less disruptive than questioning Congress’ authority to delegate authority to agencies at all.

Gorsuch’s partial concurrence interprets the narrowness of Roberts’ vote as evidence that the “decision is more a stay of execution than a pardon” for Auer deference. Without breaking any major new ground, Justice Elena Kagan’s opinion for the court took the opportunity to clarify some of the court’s recent changes to Auer’s domain, many of which address criticisms leveled against the principle. As many had already speculated, the court reads the cumulative effect of cases like Christopher v. SmithKline Beecham and Gonzales v. Oregon as having set up a doctrinal inquiry not unlike Chevron’s famous two-step (Perhaps we should just call it an n-step or a staircase to allow for the development of future steps.). Most importantly, Kagan emphasized that Auer deference is not a blank check. Auer step one, or the process of determining whether there is a “genuine ambiguity” in light of an application of the “‘traditional tools’ of construction,” has to be taken seriously by the courts, and the Supreme Court remanded to the U.S. Court of Appeals for the Federal Circuit precisely because the panel below had not done so. Even when there is a genuine ambiguity, “the agency’s reading must fall ‘within the bounds of reasonable interpretation,’” and “[t]hat is a requirement an agency can fail.”

Perhaps, Gorsuch wrote, these caveats (which are not really as new as Gorsuch suggests) so changed the practical force of Auer deference that Roberts saw “little practical difference between keeping it on life support … and overruling it entirely.” Should Kagan’s efforts to clean up and systematize application of Auer fail in the lower courts, Gorsuch claimed that the court will likely “find the nerve it lacks today and inter Auer at last.” Similarly, Kavanaugh, writing separately, envisioned a future in which reviewing courts deploying Kagan’s framework “almost always reach a conclusion about the best interpretation of the regulation at issue”—the functional equivalent of de novo review. Perhaps. But policing lower courts’ application of Kagan’s framework in the trenches of agency litigation will be hard work for the court, and it is liable to be an imperfect monitor. Teeing up another suitable frontal challenge to Auer will be even harder.

There should be no mistake: Roberts’ decision to save Auer deference is a devastating setback for opponents of judicial deference to agency legal interpretations, and all the more so because it is based entirely on stare decisis. As Gorsuch’s partial concurrence recounts, there is no shortage of arguments that might be deployed to justify departing from stare decisis—the separation of powers concern about combining rule-writing and rule-interpreting authority in agencies, the statutory arguments based on Section 706 of the Administrative Procedure Act, or the concerns about the doctrine’s perverse incentives for rule-writing—to many of which Roberts appears quite sympathetic. Moreover, Roberts has displayed little compunction about overruling precedent in the past. Indeed, he authored an opinion just days ago in Knick v. Township of Scott that overruled a longstanding precedent. In light of these circumstances, it is not even remotely clear what kind of argument or evidence could sway Roberts to change course on Auer deference.

Kisor will, I suspect, be canonical. Part of its staying power will come from the exceptionally lucid articulations of two completely different understandings of the necessity of the administrative state in Kagan’s opinion for the court and Gorsuch’s partial concurrence. The initial reaction of many legal scholars is that these are masterfully written and paradigmatic statements of the major perspectives in administrative law today—and I agree. But the decision will also likely come to be known as the decision that laid bare the realpolitik of administrative deconstruction. 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.

Posted in Kisor v. Wilkie, Symposium on the court’s ruling in Kisor v. Wilkie

Recommended Citation: Daniel Walters, Symposium: Laying bare the realpolitik of administrative deconstruction, SCOTUSblog (Jun. 27, 2019, 7:09 AM), https://www.scotusblog.com/2019/06/symposium-laying-bare-the-realpolitik-of-administrative-deconstruction/