D.C. Circuit Review – Reviewed: Outrunning the Bear

by Aaron Nielson — Sunday, Feb. 21, 2016@Aaron_L_Nielson

The D.C. Circuit issued no opinions this week. Especially with this extra time, it is fitting to take a few moments to reflect on the “admin law” legacy of Justice Scalia, a former administrative law professor and surely one of the most important and talented jurists in the history of the Supreme Court.

Justice Scalia liked to tell an old joke about a race with bear: “The story is about the two hunters who are out in the woods in their tent and there’s growling in the brush near them. And they open the tent flap and there is a huge grizzly bear and they start running. And—and the guy who’s a little heavier and he’s running behind, he says, ‘It’s no use. We’re never going to outrun that bear.’ And the guy who’s running in front says, ‘I don’t have to outrun the bear. I just have to outrun you!’”*

Justice Scalia’s point, of course, was that his methodology may not be perfect, but perfection should not be the test. Rather, the test should be whether another method is better. Cf. Winston Churchill (“Democracy is the worst form of government, except for all the others.”); Einer Elhauge (“The political process may have defects, but critical analysis is misleading if it proceeds on the premise that those defects should be measured by the ‘nirvana’ standard, where any deviation from an unobtainable ideal is grounds for criticism.”).

Usually, Justice Scalia used the “bear” insight to defend constitutional originalism. Yet there is no reason why the insight should be so limited. Indeed, Scalia’s methodology is not exclusively originalist; it also values bright-lines rules (to Scalia, the Rule of Law is a Law of Rules). But a preference for rules over standards, as Steve Calabresi and Gary Lawson argue, can sometimes be intension with originalism. Rather than being purely originalist, Scalia’s methodology, in other words, involves blending originalism with clear lines of division between what is lawful and what is not. After all, what’s a judge to do? Standards are useful, but at some point a working system of law needs predictability too.

This post, of course, is not about originalism. It’s about administrative law—in particular, Justice Scalia’s approach to administrative law. But the same sort of tension, it seems to me, is at issue. How to balance rules versus standards in a world of positive law, and is Justice Scalia’s methodology for doing so the right one?

With all of this in mind, consider this question (I presented a version of it to my students a couple of years ago):

Imagine someone said the following to you: “Although many people believe that ‘conservative justices’ oppose regulation and want to make it harder for agencies to act, Justice Scalia’s views are actually extraordinarily favorable to agencies. Scalia is the Court’s strongest proponent ofChevron (as reflected in Mead); he firmly supports Vermont Yankee (as reflected in his scholarship); he opposes enforcement of the nondelegation doctrine (as reflected in Whitman v. American Trucking); he thinks agencies should receive deference on jurisdictional questions (as reflected in City of Arlington); he also thinks that independent agencies are not subject to heightened judicial scrutiny when they engage in rulemaking (as reflected in Fox Television); and he favors strict standing requirements, which make it harder to challenge government action in court (as reflected in Lujan).” What would you say in response?

I hoped my students would push back. For instance, textualism can limit the scope of Chevron by making less ambiguous. Likewise, Justice Scalia played a major role in fashioning the “major questions” doctrine which limits Chevron’s applicability when important policies are at issue. He also dissented in Brand X. And needless to say, he became the Court’s harshest critic of Seminole Rock.

My point in asking the question was to show that Justice Scalia’s jurisprudence is far more nuanced than conventional wisdom might suggest. In some ways he made it easier for agencies to win, but in other ways he made it harder. This suggests that Scalia’s motivation was not “let’s make rules that hobble agencies” or “let’s make rules that help them.” Nor did all of his decisions seem as closely tied to legal texts as others (for instance, Judge Brown has argued that the Supreme Court’s standing doctrine may not be historically or textually grounded). Though, to be sure, he cared a great deal about text. How then to explain his views? It seems to me that Scalia, at bottom, was trying to answer this question: “Consistent with positive law, can I find a bright-line rule?” He also wanted to provide the current administrative flexibility to implement the will of the People (hence Chevron), but yet also ensure that it respects Congress (hence a “major questions” doctrine). All of this is a tricky balance.

In the end, whether Justice Scalia’s methodology is the right one is a difficult question; perhaps positive law and bright-line rules cannot always be reconciled, or, if they can, perhaps not how Scalia would do it. Nor does anyone agree with everything that Scalia had to say about administrative law; indeed, he himself came to second guess some of his earlier positions (for example, Scalia came to despise Seminole Rock, but he also authored Auer). Scalia’s methodology is imperfect.

Yet the issue should not be whether his methodology is perfect. Instead, did Justice Scalia outrun the bear?

That question is one administrative law scholars will be debating for generations. For Justice Scalia himself observed, no doubt with a mischievous smile, that “[a]dministrative law is not for sissies—so you should lean back, clutch the sides of your chairs, and steel yourselves.” What a remarkable man.

* I always have loved Justice Scalia’s animal imagery, much of which he deployed in the cause of administrative law. For instance, Scalia spoke of “letting Article III judges—like jackals stealing the lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive.” He also explained that Congress “does not, one might say, hide elephants in mouseholes.” And most famous of all, he noted that “[f]requently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Outside of administrative law, Scalia also had things to say about dead animals and mythical creatures: ghouls in Lamb’s Chapel; the Sphinx in Dickerson; animal entrails in City of Arlington; “pork (the nongovernmental sort)” in McConnell; and the golden calf in Employment Division v. Smith.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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