Law’s Abnegation — SCOTUS 2019 Edition

 

I’m moved, perhaps unwisely, to lay down a marker about the opinions SCOTUS will soon release on administrative law and executive power - to lay my bets before the wheel has stopped spinning. The main pending cases are Gundy v. U.S., the nondelegation case; Department of Commerce v. New York, the census case; and Kisor v. Wilkie, the case asking the Court to overturn Auer deference (aka Seminole Rock deference) to agency interpretations of their own regulations. My suggestion is that if the administration does well across the triptych, broadly speaking, it will mark a distinct failure for the recent wave of critiques of the administrative state, and a salient confirmation of the long-run unfolding of law’s abnegation to the administrative state.

It is entirely possible that the administration will prevail, in some sense, in all three cases, or at least prevail in some and fight to a draw in others. To be sure, the conditions of “victory” are not well-defined in all the cases. In Kisor v. Wilkie, for example, should the Court limit or curtail Auer deference without eliminating it altogether, whether the government will have “won” is a complicated question. The answer depends on what one thinks the administration’s real objectives were and what one’s baseline expectations were. Nonetheless, given the wild-eyed excitement in certain libertarian-legalist quarters about the prospect of overruling first Auer and then Chevron itself, anything less than a clean overruling in Kisor will certainly count as a defeat for the libertarian campaign against the administrative state. If Auer can’t be cleanly eliminated, it seems exceedingly unlikely that Chevron can be. Likewise, in the census case, it is possible, although not likely, that the Court will in effect deny victory to both sides for the time being, by sending the case back to the lower courts to examine recent claims of newly-discovered crucial evidence.

So suppose that the government wins in Gundy, over nondelegation dissents from Justice Thomas and one or two others; that Kisor does not squarely overrule Auer; and that the census case ends either in the government’s favor or in a procedural postponement. (In a variant, one could imagine a plurality opinion in Gundy upholding the delegation, joined on narrower grounds by, perhaps, the Chief Justice and Justice Kavanaugh, with dissents from their other conservatives). If anything like this scenario comes to pass — a scenario in which the decisions are, by and large and taken as a set, weighted in favor of administrative power — it will extend and confirm a trend going back to the end of the Obama administration and before: excited talk about reining in executive and administrative power usually turns out to be no more than talk.

What major victories have the forces of retrenchment won, exactly, in recent memory? King v. Burwell? Let us recall that the decision, in the end, rejected a serious challenge to the Affordable Care Act. Perhaps the best candidates are the decisions in Michigan v. EPA and Encino Motorcars v. Navarro. The former, however, is limited and ambiguous, while the latter is banal. Relative to the breathless expectations created (sometimes artfully) on social media and in law reviews about imminent decisions curtailing the administrative state, all this amounts to thin gruel. The great retrenchment, much discussed and anticipated, always seems to recede into a vividly imagined future.

Indeed, one might go farther to argue that the main effect of the recent wave of libertarian litigation aiming to restrict executive and administrative power has actually been to further clarify, strengthen and entrench such power — a perverse result from the standpoint of the administrative state’s critics. In the case of presidential power, recent landmarks here are Trump v. Hawaii, the travel ban case, and Zivotofsky II, the Jerusalem passport case. Both are among the most expansive statements of presidential power in the Court’s recent history. Both were essentially own-goals on the part of forces who hoped to create a precedent going in the other direction, and whose second choice would certainly have been no precedent at all, rather than a clear precedent in the wrong direction. If the opinions soon to be delivered, taken overall, have even roughly the same character as to agency authority, then the perversity of forcing the Court to clarify and confirm the scope of executive and administrative power will be all the more obvious.

(Postscript: This post isn’t quite as rash as it seems. The betting here is, I believe, rigged in my favor. As an unscrupulous rhetorician, I would of course refuse to acknowledge that even clear losses for the administration in all the forthcoming cases would amount to a serious blow against law’s abnegation. Take Gundy, for example: should the Court dramatically invalidate (part of) a statute on nondelegation grounds, for the first time since 1935, I will immediately claim that the statutory provision at issue was of relatively little consequence, and that Gundy is best seen as a nondelegation version of Lopez, the case that invalidated the Gun-Free School Zones Act as beyond Congress’ commerce power — a relatively low-stakes case that proved to be largely symbolic, and that hardly lead to a sweeping retrenchment of the Commerce Clause. This unscrupulous argument will be all the easier in that I believe it to be true).