Massachusetts was right. In its original state constitution, drafted by John Adams, the state asserted the desire to “be a government of laws and not of men.” The rule of law, not human beings, was a foundational principle of our national constitution as well.
Sometimes it’s forgotten how the Massachusetts Constitution sought to realize this principle. The rule of law, it declared, required the separation of governmental powers, so that the legislative, executive, and judicial departments would “never” exercise the power of another branch. Otherwise, a person or group controlling two or three of these powers could manipulate the law to accomplish whatever they wanted. The rule of law would be a mere veneer for the whim of persons, for oppression against the people.
This principle was at stake in Wednesday’s Supreme Court case, Kisor v. Wilkie. Government agencies make many of the regulations that govern our lives, and courts must apply these rules when cases come before them. Such cases often arise because an affected individual disagrees with how the agency interpreted its own rule. In these disputes, Supreme Court precedent stated that judges must defer to the agency’s interpretation if they found the regulation’s meaning “ambiguous.”
The problem with this doctrine, often called “Auer deference,” goes back to John Adams’ original insight.
Constitutionally, the courts possessed the judicial power, meaning the authority to interpret the law in order to settle legal disputes. But by deferring to agency interpretations, “Auer deference” told judges to concede their judicial power to those bureaucrats. The real interpreter would be the administrator, with the courts serving as conduits to that interpretation. These bureaucrats already exercised legislative power in rule-making and executive power through enforcing their own rules. Adding in Auer deference created the most dreaded of trifectas — one institution possessing all three governmental powers.
The Supreme Court in Kisor passed on a chance to overturn this dreadful doctrine. Yet while Justice Elena Kagan’s majority opinion did affirm it, it did so in much-narrowed fashion. The Supreme Court established a rigorous set of conditions a regulation must meet before a judge could defer.
First, Kagan tried to set a high standard for when a court may declare a rule ambiguous. Second, even when ambiguous, an agency must show its interpretation “reasonable,” must implicate its “expertise,” and should stem from its “fair and considered judgment.”
Kagan argued that at times all of these conditions would hold true, and only then did it make sense to defer. If the wording did not solve the dispute, who better to resolve such ambiguity than the agency who made it? Furthermore, much agency rule-making involved technical knowledge of chemistry, biology, engineering, and so on. Could we really say that a judge with a J.D. really knew better the meaning of a rule than “experts” in the regulated field?
But here, Kagan sidestepped the real problem. Such deference still leaves room for agencies to give the binding interpretation. Any time they do so, they exercise the judicial power. This violates our constitutional separation of powers and the rule of law.
No upside is worth that price, for its cost ultimately is our liberty.
Still, Kagan did have a practical point — judges might not know as much about chemistry as a scientist. But the answer lays within the separation of powers, not outside it. Courts should take into account administrators’ expertise when interpreting regulation, and the executive branch might very well have special insight into a regulation’s meaning. But executive experts, while knowledgeable, are not infallible.
And they are not judges. They should be allowed to make their case, not make the definitive interpretation of the law.
Justice Neil Gorsuch’s separate opinion noted that Auer deference “emerges maimed and enfeebled — in truth, zombified.” In a number of ways, it now stands as the Walking Dead Doctrine: shorn of much of its power, undead but not quite gone.
At the same time, Gorsuch rightly lamented this case as a lost opportunity. The danger of Auer deference to the rule of law, though limited, persists. For, though zombified, Auer still packs an unconstitutional bite.
Adam Carrington is an assistant professor of politics at Hillsdale College.
