Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference

by Chris Walker — Friday, June 22, 2018@chris_j_walker

The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan’s opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are (at least inferior) officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of the agency. SCOTUSblog is running a symposium on the case, including a great post by my colleague Peter Shane in which he coins the term “constitutional dodgeball” to describe the judicial minimalism at play in a number of decisions this Term.

It’s also worth checking out Justice Thomas’s concurrence, which cites extensively my co-blogger Jenn Mascott’s Stanford Law Review article on the definition of “Officers of the United States.” I like how Dave Hoffman put it on Twitter:

In this post, however, I want to briefly flag two other decisions from yesterday that illustrate distinct, albeit not new, approaches to limiting the reach of Chevron deference.

First, we have Justice Gorsuch’s “clear enough” approach. In Wisconsin Central Ltd. v. United States, a divided 5-4 Court held that employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.” In his dissent, Justice Breyer argued that the federal government had the better interpretation; if that interpretation wasn’t the conclusive one, it should at least receive Chevron deference.

Justice Gorsuch, writing for the Court, found the statute unambiguous and contrary to the federal government’s interpretation. To reach that conclusion, Justice Gorsuch had to look beyond the plain text of the statute, as the statutory text does not expressly say whether “for services rendered” includes stock options. Instead, Justice Gorsuch looked to the whole text, structure, and design of the statute. Or as he put it in rejecting Chevron deference, “in light of all the textual and  structural clues before us, we think it’s clear enough that the term ‘money’ excludes ‘stock,’ leaving no ambiguity for the agency to fill.”

Justice Gorsuch’s more muscular Chevron step one inquiry is not new. This was Justice Scalia’s approach, and it has been adopted by a number of other textualist judges who seldom find statutes ambiguous. Most recently, Judge Kethledge (a SCOTUS shortlister) declared in the pages of the online companion to the Vanderbilt Law Review that in almost a decade on the Sixth Circuit he “personally [has] never had occasion to reach Chevron’s step two in any of my cases, there have been plenty of cases where the agency wanted us to.” For the Scalia-Gorsuch-Kethledge textualists, it is par for the course to find statutes unambiguous at step one and thus not defer to an agency statutory interpretation.

Justice Gorsuch’s framing of the step one inquiry as “clear enough” in Wisconsin Central may well affect how lower courts approach Chevron. This language reminds me a bit of Justice Ginsburg’s “scant sense” exception to Chevron deference expressed in her 2015 opinion for the Court in Mellouli v. Lynch. Perhaps lower courts will interpret “clear enough” as more searching than “clear” or “unambiguous,” thus narrowing the scope of Chevron deference in the circuit courts.

Justice Gorsuch’s approach also reminds me of an observation by Judge Kavanaugh (another SCOTUS shortlister) in his Harvard Law Review book review about how different judges set different thresholds for finding clarity (at 2137-38, footnotes omitted):

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Perhaps the “clear enough” standard will encourage circuit and district judges to lower their thresholds for finding clarity closer to the 50-50 range, thus narrowing the scope of Chevron deference at step one.

Second, we have Justice Kennedy’s concerns against “reflexive deference.” In Pereira v. Sessions, the Court held that a notice to appear that does not include the time or place of the removal proceedings is not a statutory notice to appeal that would trigger the stop-time rule in the Immigration and Nationality Act. The Court refused to apply Chevron deference because it found the statute unambiguous.

Justice Alito was the sole dissenter, arguing that the case should be decided in the federal government’s favor based on “an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).” Justice Alito concluded that this is a run-of-the-mill Chevron deference case, where the statute is ambiguous and the agency’s interpretation is reasonable. The only way to reach a contrary conclusion, Justice Alito concluded, is if “the Court has overruled Chevron in a secret decision that has somehow escaped my attention.”

The headline-grabbing opinion from Pereira, however, was Justice Kennedy’s solo concurrence, in which he added his voice to the judicial chorus for reconsidering Chevron deference. Justice Kennedy’s concern is with how the doctrine “has come to be understood and applied,” with “[t]he type of reflexive deference exhibited in some of these cases.” Reconsideration of Chevron deference, for Justice Kennedy, would involve analyzing “the premises that underlie Chevron and how courts have implemented that decision.” “The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers,” Justice Kennedy explained, “should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.”

As my quotations from Justice Kennedy’s concurrence hopefully underscore, I do not agree with those, like Joshua Matz, who believe Justice Kennedy is calling for Chevron‘s demise. Instead, I find myself agreeing more with Jonathan Adler and Jeff Pojanoswki, who view this call for reconsideration to be more about narrowing Chevron deference.

What would that narrowing look like? As opposed to Justice Gorsuch’s more searching, “clear enough” step one, I’d expect Justice Kennedy to continue Chief Justice Roberts’s narrowing project at Chevron step zero, first articulated in the Chief’s dissent in City of Arlington v. FCC and further developed in the Chief’s opinion for the Court in King v. Burwell. I view this as a context-specific Chevron deference, in which the reviewing court would focus more on the particular statutory ambiguity at issue and ask itself whether Congress would have really intended for that particular issue to be delegated to the agency for decision. To determine congressional intent to delegate by ambiguity, the court would consider the agency’s expertise on the precise issue as well the issue’s economic and political significance, among other factors.

As I have detailed elsewhere, this context-specific approach to Chevron deference finds some support in the empirical realities of how folks in Congress draft statutes and how officials at federal agencies draft regulations that interpret statutes. Such a narrowing also likely has the support of five or maybe even six justices on the Court today.

In sum, yesterday’s decisions in Wisconsin Central and Pereira articulate two different, though not mutually exclusive, avenues for narrowing Chevron deference. Justice Gorsuch’s “clear enough” approach would encourage courts to engage in a more-searching inquiry at step one. Justice Kennedy’s anti-“reflective deference” approach would likely lead to narrowing Chevron‘s domain at step zero. Neither would entail eliminating Chevron deference entirely.

Whether such narrowing of Chevron deference is a good thing is a discussion I’ll save for another day.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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