The Roberts Court and Administrative Law

(Forthcoming, 2018 Supreme Court Review)

Gillian E. Metzger*

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.”1 Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction.2 In the process, they have deeply enmeshed administrative agencies in political battles—indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on parts of the national bureaucracy.3 These bold assertions of administrative authority stem in part from Congress’s inability to address pressing problems, with political polarization, intense partisanship, and near parity between the main parties often leading to legislative gridlock.4 The contemporary political climate also means that fights over administrative actions have become fierce and unrelenting. Moreover, the combination of these two developments—aggressive administrative advancement of presidential agendas in a deeply partisan and polarized world—has spurred a significant uptick in politically- charged administrative law litigation, epitomized by the dramatic expansion in red state and blue state lawsuits challenging executive branch actions they oppose.5 In addition, conservative groups have put sustained efforts into fostering academic attacks on core features of administrative government, efforts that have provided the intellectual scaffolding for today’s doctrinal disputes.

And, finally, there is the Trump Administration’s emphasis on selecting judges who are receptive to these conservative attacks on administrative governance in court.7

A particularly important contributor to administrative law’s contested status is the Roberts Court. The replacement of Chief Justice Rehnquist and Justice O’Connor with Chief Justice Roberts and Justice Alito brought a new skepticism about administrative government to the Supreme Court. Meanwhile, Justice Scalia and Justice Thomas did 180 degree turns in their approaches to administrative law, penning attacks on administrative law decisions they themselves had authored just a few years earlier.8 Justice Gorsuch’s elevation to the Court added another strident administrative skeptic to the mix,9 and by his final term on the Court even Justice Kennedy had joined the ranks of administrative law’s critics.10

This judicial skepticism of administrative government, which I have elsewhere labeled anti-administrativism, is heavily constitutional, marked by a formalist and originalist approach to the separation of powers, a deep distrust of bureaucracy, and a strong turn to the courts to protect individuals against administrative excess and restore the original constitutional order.11 Several opinions demonstrated these traits in the lead up to the 2018 Term, from the Court’s decision in Free Enterprise Fund v PCAOB striking down double-for-cause removal protection, to Justice Thomas’s concurrence in Department of Transportation v Association of American Railroads attacking modern delegation, to Chief Justice Roberts’s dissent in City of Arlington v FCC rejecting deference to agency jurisdictional determinations, to the many concurrences in Perez v Mortgage Bankers Association calling deference to agency regulatory interpretations into question.12 But perhaps the clearest example is the ongoing debate over Chevron deference, or the doctrine that a court should defer to a reasonable interpretation of an ambiguous statutory provision offered by the agency charged with its implementation.13 The most cited administrative law decision for decades, Chevron has been under full-blown assault at the Supreme Court since 2015, when Justice Thomas condemned the practice of courts deferring to agency statutoryinterpretations as violating Article III and creating unconstitutional delegations.14 Although Thomas made his argument in an opinion concurring in the judgment that no one else joined, by Pereira v Sessions three years later there appeared to be at least four justices who considered Chevron deference to be constitutionally problematic,15 and the Court itself has not relied on Chevron deference since 2014.16

Still, a striking feature of the Roberts Court’s anti-administrativism before the 2018 Term was its largely rhetorical character. Although several justices waxed expansively about an out-of- control national bureaucracy, the most dramatic attacks on the administrative state’s constitutionality and administrative law were largely restricted to concurrences and dissents. The occasional majority opinions invalidating administrative arrangements on constitutional grounds were notably narrow, cabining their analysis with carve outs and remedial minimalism.17 And the Court was adept in its avoidance tactics, for example repeatedly determining that statutes were unambiguous and thereby sidestepping the need to take on the debate over Chevron’s constitutionality.18 In short, for all of its alarmism about bureaucrats running amok and assertions that the contemporary administrative state violates the constitutional order, the Roberts Court hadn’t yet pulled back significantly on administrative governance in practice.

Thus, the increasingly burning question was whether the Roberts Court was willing to put its might where its mouth was on administrative law, even at the cost of destabilizing longstanding governance regimes. Or would its anti-administrativism continue to live mainly at the margins, tamping down perceived administrative law excesses without forcing radical changes in administrative law doctrines or received wisdom about the structural constitution? Justice Kavanaugh’s track record on the DC Circuit—the nation’s leading administrative law court— suggested that he would be amenable to further narrowing and retraction in core administrative law doctrines of deference and delegation.19 Moreover, the Court granted certiorari in several cases that raised pointed challenges to basic administrative law precepts, suggesting that it was finally willing to put its anti-administrativism into action.20

Yet administrative law’s denouement did not come. After a term rife with important administrative law decisions, established administrative law remains in force, albeit narrowed.

Thus, in Kisor v Wilkie,21 the Court did not overturn the Auer doctrine of deference to agency regulatory interpretations, although it tempered such deference in significant ways. Similarly, in Department of Commerce v New York,22 the Court ultimately reaffirmed and arguably expanded administrative law’s core requirement of reasoned decisionmaking to include a prohibition on pretextual explanations of agency decisions. In several other cases, the Court hewed to existing administrative law frameworks. The case in which the anti-administrativist view gained the most traction was Gundy v United States,23 where four justices signaled sympathy for a full-bore assault on the constitutionality of broad delegations. Even so, a plurality upheld the measure in question applying the Court’s well-established doctrine on delegation, and as of this writing it remains unclear (and in my view unlikely) whether a majority will materialize for a major doctrinal recalibration on delegation that would call the constitutionality of the administrative state into question.

The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law. These divisions track clear ideological lines. Justice Gorsuch emerged as the voice of the four more conservative justices this term, intent on overturning established administrative law doctrines and pulling back on administrative government. Meanwhile Justice Kagan led the four liberal justices in a defensive effort, seeking to deter or at least mitigate the conservative assault. In the middle was Chief Justice Roberts, sharing the conservatives’ suspicion of government and bureaucracy yet resistant to the dramatic disruption and potential institutional costs to the Court that Gorsuch’s approach might yield. The cases, particularly Kisor and Department of Commerce, also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence. These include recently reemerged philosophical disputes over the distinction between law and policy as well as more longstanding constitutional disagreements about separation of powers formalism, functionalism, and minimalism. Another central development is an increased historical focus, a development evident in Roberts Court administrative law opinions from all quarters. This increased historicism surfaced notably in revived debates over the meaning of the 1946 Administrative Procedure Act, with originalist and textualist interpretation of the APA’s text squaring off against a more evolving, common law approach to the statute and administrative law writ large. Although important, these analytic disagreements are unable on their own to explain the direction of Roberts Court administrative law. Among other issues, they map the Court’s ideological divides imperfectly, with some trends spanning both camps and inconsistencies on both sides.

Taking a further step back, two contrasting frames emerge from the Roberts Court’s administrative law opinions from the 2018 Term, building on these analytic tensions. The first is formalist in the extreme, insisting on sharp demarcations among the branches and between law and policy. It is also insistently originalist, condemning contemporary judicial review doctrines as at odds with traditional understandings of the judicial power and the meaning of the APA. With its categorical and uncompromising stance, commitment to limited government and aggressive judicial review, this approach has the potential to radically transform American governance. That seems in part the purpose, as this radical frame is accompanied by deep skepticism about administrative government.

The second frame encompasses justices with a broader range of views about constitutional structure and administrative government. Most are functionalist and accepting of constitutional evolution, but at least the Chief Justice (a sometime adherent) is more formalist and originalist. They also disagree on the extent to which administrative government poses a serious problem at all, and if it does whether the concern is the potential for arbitrary agency action or a politically unaccountable bureaucracy. But what unites them is that they are unwilling to radically disrupt existing governance regimes, at least not all at once. Instead, they share a commitment to addressing whatever problems exist with administrative government by gradually fine-tuning doctrine. The central characteristic of this approach is therefore its incremental, common law character. The impact of this incrementalist approach is harder to discern, given both the variation within its ranks and the longer time-horizon needed to assess incremental change. It also leaves lower courts greater room to apply administrative law as they see fit, which could yield more pullback in administrative law or its continued preservation, depending on the orientations of lower court judges. Like its radical cousin, this incrementalist frame could result in a substantial pullback in administrative power, but it would have this effect through a more subconstitutional and statutory interpretation guise and over a longer period of time.

In assessing the future impact of Roberts Court administrative law, the most important factor may be this tension between radicalism and incrementalism. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely.

That administrative power is expansive is indisputable, as is the possibility that such power could be abused. Yet the Roberts Court’s portrayal of administrative government is strikingly incomplete. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. The lack of such an affirmative account reinforces the sense that the goal of Roberts Court administrative law may be to pull back on government for its own sake, rather than to better achieve constitutional values. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.

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B. Constraining the Administrative State

It is also worth highlighting a central feature that, despite their differences, the radical and incrementalist approaches share: Both involve an assertion of greater judicial control over the administrative state and justify that greater role for courts on concerns about the dangers of expanding administrative power. Indeed, skepticism about administrative government may well be the consistent driver animating Roberts Court administrative law, albeit given full sway under Justice Gorsuch’s radicalism and tamped down under Justice Kagan’s incrementalism.

A striking characteristic of many Roberts Court administrative law opinions is their sharp rhetorical attack on the administrative state and bureaucracy. Chief Justice Roberts deserves the top award for the most pointed prose in this regard. His reference in Free Enterprise to a “vast and varied federal bureaucracy” that “wields vast power and touches almost every aspect of daily life” is a prime example, and his description in City of Arlington v FCC of “hundreds of federal agencies poking into every nook and cranny of daily life” is equally evocative.291 Several other justices have made disparaging remarks about the bureaucracy as well, often quoting Roberts’s language in Free Enterprise. Justice Gorsuch in particular repeatedly positions judges as the

protectors of “the unpopular and vulnerable” against “bureaucrats”292 and “a bureaucrat’s caprice.”293 He echoed these sentiments to some extent in Kisor, invoking the administrative state’s “explosive growth,” and “self-interested” bureaucrats with shifting whims.”294 But the 2018 Term decisions were relatively tame and balanced on the rhetorical front, with Chief Justice Roberts in particular holding his fire. Perhaps the attacks on the “deep state” that currently dominate the political arena convinced the justices that similar bureaucracy bashing by the Court would be inappropriate.295

Instead, what surfaced clearly in the 2018 Term opinions was a more principled debate over the relevance of bureaucratic expertise. As noted above, both Justice Kagan in Kisor and Justice Breyer in Department of Commerce portrayed expertise as a central benefit of administrative government and one that administrative law doctrine should be tailored to foster. Thus, Kagan precluded Auer deference from applying to administrative interpretations of regulations that did not “in some way implicate its substantive expertise” while Breyer relied heavily on the contrary and documented views of agency experts in concluding that Ross’s decision was arbitrary and capricious.296 By contrast, Justice Gorsuch elevated judicial expertise over that of bureaucrats, arguing that it was ultimately for courts to weigh “the expert agency’s views” against “competing expert and other evidence supplied in an adversarial setting.”297 And Chief Justice Roberts insisted on the primacy of an agency’s political officials over its experts, emphasizing that agency decisions are legitimately driven by political priorities. This is a point Roberts has made before, most notably arguing in Free Enterprise that “[o]ne can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.”298 Justice Thomas also has voiced skepticism of arguments for deference based on administrative expertise, identifying them as misplaced and historically rooted in the progressives’ “belief that bureaucrats might more effectively govern the country than the American people.”299

Yet these disagreements over bureaucratic expertise should not obscure the similarities in these accounts. All the justices ended up supporting greater judicial scrutiny of administrative decisionmaking in some form, whether by restricted deference to agency interpretations, heightened scrutiny of agency policy determinations, or both. As significant, they did so invoking the need to guard against the danger of excessive administrative power. Even Justice Kagan in Kisor argued “that administrative law doctrines must take account of the far-reaching influence of agencies and the opportunities such power carries for abuse.”300 Granted, what the justices view as the danger posed by expanded administrative government varies in important ways. As I have

previously argued, at times justices stress the danger of aggrandized administrative power threatening individual liberty, at others the fear is that administrative power is politically unaccountable.301 In Department of Commerce Justice Breyer suggested a different account, implying that the real danger was too much political control of administrative power,302 while the Chief Justice focused on the traditional concern that exercised of administrative power must be reasoned and not arbitrary.303 And in Kisor and Gundy, Justice Gorsuch repeatedly portrayed administrative power as biased as well as aggrandized, worsening the threat to individual liberty.304 Despite these differences, the consistent theme is of the potential dangers of administrative government.

Notably lacking from the 2018 Term decisions, and from Roberts Court administrative law generally, is a robust defense of the administrative state. The contribution that bureaucratic expertise makes to better decisionmaking and effective government is a central benefit of administrative agencies.305 But administrative agencies serve other critical functions too. Bureaucracy works to constrain as well as empower government, through close supervision and enforcement of legal controls on government actors. Administrative government is also essential for ensuring political accountability; it is agencies implementing statutes through regulations and enforcement that put democratically adopted policy into operation.306 And administrative agencies are equally important to securing individual liberty, by protecting individuals against abuses of private power and ensuring access to the basic goods (safe food, a clean environment, protection against private exploitation, and so on) needed for a full and free life. The D.C. Circuit underscored this point recently in its en banc majority opinion in PHH Corporation v CFPB. There, in rejecting the claim that a single-headed agency with removal protection posed a greater threat to individual liberty than a multi-member commission, Judge Pillard emphasized the liberty benefits of financial regulation:

It remains unexplained why we would assess the challenged removal restriction with reference to the liberty of financial providers, and not more broadly to the liberty of individuals and families who are their customers. … Congress understood that markets’ contribution to human liberty derives from freedom of contract, and that such freedom depends on market participants’ access to accurate information, and on clear and reliably enforced rules against fraud and coercion.307