The Empire is Still Strong: A Response to Prof. Daly

Over on Administrative Law Matters, Prof. Daly writes that “[a]nti-administrativists have not had a good couple of weeks.” So his argument goes, in the last number of years “the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitment of the Founding Fathers.” This “cartoonish version of modern public administration” with “quavering judges unable or unwilling to get in its way” apparently met three defeats in three separate cases at the United States Supreme Court this spring: (1) Gundy, a non-delegation challenge, which I wrote about here (2) Kisor, a challenge involving the doctrine of deference which applies when administrators interpret their own regulations and (3) Dept of Commerce v New York, the census case, in which so-called “hard look review” was deployed by the Court. To Prof Daly, each of these cases represents the victory of well-developed administrative law principles over broad-side constitutional challenges to the administrative state. In this sense, “anti-administrativists” indeed had a bad few weeks.

I view the matter quite differently. Each of these cases actually shows how the “anti-administrativist” position has gained some traction, such that administrative state sympathizers like Justice Kagan must respond and incorporate them. In different ways, each case represents at least a partial triumph for positions and tools of administrative law that have roots in what Prof Daly calls the “anti-administrstivist” position.

Before moving to the cases, a note first about terminology. The term “anti-administrativist” implies that there is some objection to administrators writ large. But virtually no one makes this argument—not even Gorsuch J, who in Gundy did not criticize the very act of delegation to administrators itself, only the practice of legislative delegation. Much administrative law criticism sounds in bringing doctrine into a more coherent state, with a greater tie to fundamental constitutional arrangements. Jeff Pojanowski’s article, Neo-Classical Administrative Law, is a good example of this sort of argument. Accordingly, I will not use the term “anti-administrativist,” because it catches too much criticism: criticism that is not necessarily opposed to administrators making decisions, but that is instead focused on rooting those decisions in legislative authorization or other constitutional norms.

In terms of the cases cited by Prof Daly to support his argument, consider first Gundy. There, Justice Kagan interpreted the statute at issue to avoid a non-delegation problem, noting that delegation problems are in reality problems of statutory interpretation. To be sure, this was not a success for those who believe in a strong-form version of the non-delegation doctrine. Some of Kagan J’s opinion reads as a paean to administrative law functionalism, speaking for example to the modern “necessities of government” and concluding that if the statute at issue was unconstitutional, “then most of Government is unconstitutional.” But at the same time, the actual conclusions in Kagan J’s opinion are not at all monolithic. Rather than simply stating that the delegation passed muster under the easy-to-satisfy “intelligible principle” test, she took pains to qualify the delegation according to the text, context, and purpose of the statute. This had the effect of narrowing the delegation to avoid the sort of broad non-delegation problem that Gorsuch J saw in the case.

What motivates this sort of reasoning? It is very similar to the adoption of a clear statement rule, used variously as substantive canons of statutory interpretation in the United States. Clear statement rules work like this: absent a clear statement in the legislation, courts will not presume a certain result. Usually that certain result is contrary to some constitutional norm or value, even though the result is not an in-law constitutional violation. As William Eskridge explains, the Court has variously deployed this sort of reasoning in the context of delegation problems, “refer[rring] to the non-delegation idea as a canon of statutory interpretation rather than an enforceable constitutional doctrine.” Why? Because the US Constitution vests all legislative power in the Congress, and statutes (laws) cannot be made without bicameralism and presentment. This was the approach adopted in the Benzene Case, for example, where the Court interpreted a delegation to OSHA to create a “safe and healthful workplace.” The Court interpreted the statute to prevent the broad delegation, imposing a requirement of cost-benefit analysis on the agency.

Kagan J’s opinion is basically the same. She qualified the delegation with reference to the broader statutory scheme. She would only do this to avoid some delegation problem that engages a core constitutional presumption against delegation, as Eskridge points out. The result was an interpretation of the statute that avoids constitutional problems that many of us who oppose widespread delegation would find problematic. In this sense, constitutional objections to widespread delegation found their way into Kagan J’s opinion.

Consider next Kisor, the regulatory deference case. Kisor reformulated so-called Auer deference to administrative interpretation of regulations, which simply held that a court would only interfere with such an interpretation if it was “plainly erroneous or inconsistent with the regulation.” But Kagan J, in a majority opinion, came to a very different view of the conditions for the engagement of now-renamed “Kisor deference.” This opinion had the effect of cabining deference such that it only applied when the underlying justifications for it—legal and epistemic—were truly present. Consider each of the steps of Kisor deference, as explained by Chris Walker and excerpted by Professor Daly:

  1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
  2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
  3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” (some version of the Mead doctrine/Chevron step zero).
  4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise (some version of Skidmore deference).
  5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise (existing Christopher exception to Auer deference).

Each of these steps reflect varying justifications for deference that must actually be present before deference follows:

(1)-(2): Genuine ambiguity engages the presumption that if the legislature spoke clearly to a matter, its view must prevail over contrary interpretations by an agency. This is related to fundamental constitutional ideals of congressional/legislative superiority over a mere delegated body.

(3) and (5): Authoritativeness and fair and considered judgment reflects the requirement that agencies must adequately explain their conclusions, so that courts can conduct the constitutional act of judicial review, and so that the public can understand their conclusions. Both of these conditions are important for the public acceptance and legality of the administrative state, as noted in the Commerce Department case discussed below.

(4) Truly-existing expertise is an epistemic reason for deference, as Prof. Daly points out in his book, A Theory of Deference in Administrative Law. While it may not be a legal reason for deference (and hence not a very persuasive reason for it), it at least shows that Kagan J was concerned with ensuring that deference should apply when the reasons for its justifications are present.

So, Kisor is actually a representation of a much more constitutionally-justifiable doctrine of deference that is consistent with critiques of the administrative state as untethered to and uncontrolled by constitutional norms. Kisor is driven by a need to cabin deference to the situations where it is most justifiable, especially with reference to constitutional norms that require congressional text to govern and judicial review to be available and effective. This is in direct contrast to the Supreme Court of Canada’s unprincipled, automatic doctrine of deference.

Finally, consider the Commerce Dept case concerning a citizenship question on the census. The problem here was the Government’s explanation for why it wanted such a question. As Chief Justice Roberts explained:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process…[W]e cannot ignore the disconnect between the decision made and the explanation given. The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

This formulation of the requirement of so-called “hard-look” review frames the problem as one of public justification so that courts can scrutinize administrative action, as a corollary to the Rule of Law. To Professor Daly, this means that the “anti-administrativists’ caricature of fawning judicial servility to technocratic masters” is incorrect. But it is useful to note that the tools used to restrain judges pointed to by Professor Daly developed because of important critiques of the administrative state. Hard look review developed because of a broad trend towards pluralism, as explained by Martin Shapiro. This pluralism, which supported broader standing rules to challenge administrative action, also supported the creation of a new ground of review to ensure the adequacy of judicial review and the public justification of administrative actions. This trend was decidedly skeptical of administrative power, on the theory that agencies were “captured” by regulated parties. Far from being a welcome tool of administrative law, hard look review was and remains deeply contested. Those who might consider themselves Wilsonian progressives would balk at hard look review, even on procedure, because it means that courts are readily interfering in the policy and discretionary judgments of so-called “experts.” This says nothing of hard look review on substance. But administrative skepticism, and the requirement of public justification, cuts hard the other way in hard look review—which also means, like liberal standing rules, that agencies must be ready to defend its action before the courts and in the public eye (the APA is broadly representative of this trend).

For these reasons, each of the cases identified by Prof. Daly are not rejections of administrative skepticism. Rather, they are incorporations of a certain idea of administrative law as a control over the fiat of administrators. In this sense, reflexive deference and delegation met strong judicial rules and attitudes about controlling the administrative state. This might not amount to “anti-administrativism” but it means that the administrative critique is not without its judicial defenders. Professor Daly and I get to the same place; there are tools of administrative law available to control administrators. It just depends on whether judges use them, and from where they come.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

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