Chief Justice John Roberts drives conservatives crazy with his habit of split-the-difference jurisprudence. But his final, short paragraph in one opinion today at least gave constitutionalists solid reasons for hope.
Roberts disappointed constitutionalists by refusing to overturn the doctrine known as “Auer deference,” via which courts defer to executive agencies’ interpretations of their own rules. He did signal, however, that he is quite open to re-examining a related doctrine called “Chevron deference,” via which courts defer to the agencies’ interpretation of statutory language passed by Congress.
As explained here earlier this week, the doctrines are similar, but it is possible to distinguish one from the other. Roberts’ paragraph indicates he is willing to do just that.
“Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress,” Roberts wrote. “See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). I do not regard the Court’s decision today to touch upon the latter question.”
In effect, this is an open invitation for plaintiffs and their lawyers to challenge Chevron. It means that the prudential considerations leading Roberts to shy away from overturning Auer may not apply so strongly to Chevron. Exactly how or why that might be the case must await further elucidation, based on the particular facts in whatever case testing Chevron deference actually reaches the Supreme Court. Roberts’ mind is famously inscrutable and frustratingly changeable.
Still, it speaks volumes that, unbidden and rather gratuitously, Roberts included this reference to Chevron. It’s sort of like somebody turning down an invitation to a baseball game, but then, without even being offered, closes the conversation by saying how much fun it would be to go to a football game soon. Hint, hint.
Both Auer and Chevron are anathema to the constitutional separation of powers and hated by those who oppose an ever-expansive administrative state. Roberts appears to be saying he’ll play ball on Chevron‘s playing field, even if he wants to leave Auer’s alone for now. Let’s hope he won’t back out next time, once the game actually begins.
