Judge Raymond Kethledge on Chevron and the Abdication of Article III Power, by Charles J. Cooper and G. Ryan Snyder

by Guest Blogger — Wednesday, June 27, 2018

In our last post, we discussed Judge Kethledge’s longstanding commitment to enforcing the separation of powers. In this post, we will explain how that commitment has shaped his approach to Chevron, which requires judicial deference to agency interpretations of ambiguous statutes.

The Constitutional Case Against Chevron

Judge Kethledge’s views on Chevron originate with the text of the Constitution. As he has explained, “Article III of the Constitution vests in Article III courts ‘[t]he judicial Power of the United States’—which means not some of it, but all of it.” Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). The Framers agreed: “Hamilton said in Federalist No. 78 that ‘[t]he interpretation of the laws is the proper and peculiar province of the courts,’” and “Chief Justice Marshall said almost verbatim the same thing in Marbury v. Madison, with all but an exclamation point at the end.” Id. Under Chevron, however, the interpretation of an ambiguous statute “becomes the province of an executive agency.” Id. “One may fairly ask, therefore, whether the doctrine allocates core judicial power to the executive—or perhaps simply blocks the exercise of judicial power in cases where the doctrine applies.” Ambiguities and Agency Cases at 323.

Justices Thomas and Gorsuch have likewise decried the conflict between Chevron and Article III. A few Terms ago, Justice Thomas argued that Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is’ and hands it over to the Executive.” Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). And shortly before Justice Gorsuch was elevated to the Supreme Court, he criticized Chevron as “no less than a judge-made doctrine for the abdication of the judicial duty.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring).

Some have tried to sidestep the conflict between Chevron and Article III by arguing that agencies are not really “interpreting” ambiguous statutes; they are making policy judgments that have the force of law. To be sure, this way of thinking has one advantage—it better describes how agencies often go about their business. As Judge Kethledge has recognized, agencies that ask for deference often are “not trying to answer the same question that [courts] are.” Ambiguities and Agency Cases at 323. When courts interpret statutes, they look (or should look) for the “best objective interpretation” of the text: in other words, “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” Ambiguities and Agency Cases at 316, 323. When agencies “interpret” statutes, however, they are often looking for a “colorable interpretation that will support the policy result that [they] want[] to reach.” Id. at 323.

Although this approach better describes reality, it simply trades one separation-of-powers problem for another. When judges read their policy preferences into a statute, Judge Kethledge explains, “we call it judicial activism”—something that “most observers condemn … as an arrogation of legislative power to the judiciary.” Id. And it is unclear “why the result is any better when the arrogation is done by the executive.” Id. at 323–24. This way of understanding Chevron may “escape the jaws of Article III’s Vesting Clause,” therefore, but “it runs headlong into the teeth of Article I’s.” Michigan, 135 S. Ct. at 2713 (Thomas, J., concurring); see also Gutierrez-Brizuela, 834 F.3d at 1152–55 (Gorsuch, J., concurring).

As a judge on the court of appeals, Judge Kethledge remains bound by Chevron. But Chevron is not an inflexible doctrine, and it can properly be applied in ways that minimize its harm to the separation of powers. Judge Kethledge has done so in two ways: first, he works hard to find the objective meaning of the statutory text before declaring it ambiguous, and second, he refuses to defer to agencies that fail to justify their interpretations. We explore each in turn.

Doing the Hard Work of Statutory Interpretation

First and foremost, Judge Kethledge mitigates Chevron’s harm to the separation of powers by enforcing a high threshold for ambiguity. Chevron requires deferring to an agency’s interpretation only if “the statute is silent or ambiguous with respect to the specific issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). As a result, “the persistence and willingness of judges to work hard before declaring statutes ambiguous is an important but perhaps overlooked difference between judges.” Ambiguities and Agency Cases at 319. As Justice Scalia explained, “[o]ne who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.” Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 521. Thus, it was “relatively rare” that Chevron required Justice Scalia “to accept an interpretation which, though reasonable, [he] would not personally adopt.” Id.

The same is true of Judge Kethledge. In his view, “[i]t matters very much … that judges work very hard to identify the best objective meaning of the text before giving up and declaring it ambiguous.” Ambiguities and Agency Cases at 319. He does that work by using all of the textualist tools to unearth statutory meaning: “definitions for every word in the language,” “rules of grammar,” “our own ordinary usage of the language (a lot of which is codified in so-called canons of interpretation),” and the “context of the statute as a whole.” Id. And in the vast majority of cases, these tools allow him “to identify not merely the plausible interpretations of the text, but the best one.” Id. at 319–20. As he has explained, “if one works hard enough, all the other interpretations are eventually revealed as imposters.” Id. at 320. Thus, “statutory ambiguities are less like dandelions on an unmowed lawn than they are like manufacturing defects in a modern automobile: they happen, but they are pretty rare, given the number of parts involved.” Id.

A recent case provides a good example. In Zurich American Insurance Group v. Duncan, 889 F.3d 293 (6th Cir. 2018), the majority opinion deferred to the Department of Labor’s interpretation of the statutory phrase “substantially similar.” Judge Kethledge refused to defer, however, because the phrase “substantially similar” was “hardly so abstruse that we need an agency to interpret it for us.” Id. at 306 (Kethledge, J., concurring in the judgment). Judge Kethledge examined the dictionary definitions of the words “substantially” and “similar”; looked at how “courts, lawyers, and laypeople use [the phrase] every day”; and analyzed the statutory context. Id. at 307. In his view, those sources demonstrated that “the meaning of that phrase is neither ambiguous nor vague, but straightforward and plain.” Id. Thus, Judge Kethledge saw “no reason in this case to hand off the judicial power to an executive agency.” Id. at 306.

To be sure, the agency’s interpretation of the statute was “no different” than the one that Judge Kethledge adopted. Id. at 307. But he did the interpretive work anyway, because of his commitment to preserving the constitutional order. As he explained: “For the narrow purpose of deciding this case … it makes little difference whether we agree with the agency’s interpretation (as I do) or defer to it (as the majority does). For purposes of our constitutional separation of powers, however, it matters a great deal whether we exercise our Article III power to ‘say what the law is’ or instead hand over that power to an executive agency.” Id. (citations omitted). Judge Kethledge acknowledged that, “in cases where the Chevron doctrine applies, the Supreme Court has told us we must hand over that power where the statute is ambiguous and the agency’s interpretation is reasonable.” Id. But judges “should not resign ourselves to that outcome before making every effort to discern for ourselves the statute’s meaning.” Id. at 307–08; see also, e.g., Price v. Medicaid Dir., 838 F.3d 739, 748 (6th Cir. 2016) (analyzing the statute’s “ordinary meaning” and concluding that the agency was correct, rather than deferring under Chevron); Hadden v. United States, 661 F.3d 298, 301–02 (6th Cir. 2011) (agreeing with the agency’s interpretation of a statute because “Congress has directly spoken to this issue,” rather than deferring under Chevron).

Judge Kethledge takes the same approach in easy and difficult cases alike. As he has explained, a statute is not ambiguous simply because it is “complicated, even very complicated.” Instead, that “just means that the judge needs to work harder to determine—in the sense of ascertain—the statute’s meaning.” Ambiguities and Agency Cases at 319.

Another example proves the point. In Sierra Club v. Korleski, 681 F.3d 342 (6th Cir. 2012), Judge Kethledge wrote a majority opinion interpreting the citizen-suit provision of the Clean Air Act, which allows private parties to sue “any person … who is alleged to have violated … an emission standard or limitation.” 42 U.S.C. § 7604(a)(1). As background, states generally enter into “state implementation plans” with the federal government to enforce some of the Act’s requirements, including emissions standards. See id. § 7410. For several decades, the State of Ohio had such a plan. 681 F.3d at 344. In 2006, however, the Ohio General Assembly passed a law that prohibited the Director of the Ohio EPA from enforcing one of the Act’s emission standards. Id. A group of plaintiffs responded by filing a citizen-suit against the Director, arguing that he had “violated” that standard by refusing to enforce it. Id. at 344–45.

The federal EPA, as an amicus, argued that it had interpreted the Act to authorize citizen-suits against state agencies, and that its interpretation was entitled to Chevron deference. Brief of the United States as Amicus Curiae at 11, Sierra Club, 681 F.3d 342 (No. 10-3269), 2010 WL 6707957. But Judge Kethledge rejected that argument after a detailed examination of the Act’s “text and structure.” 681 F.3d at 351. Judge Kethledge explained that a different part of the Act, § 7509, described the Director’s failure to enforce an emission standard as a “deficiency” instead of a “violation,” and that other parts of the Act “distinguished between state failures to regulate and ‘violations’ of a [state implementation plan], sometimes within the same sentence.” Id. at 350. Moreover, treating the Director’s failure as a “violation” would subject him to “penalties of $25,000 per day” and a prison sentence of up to five years—which rendered the agency’s interpretation “implausible.” Id. at 349. (Judge Kethledge went on to hold that the plaintiffs could obtain relief by suing the federal EPA for its failure to impose sanctions against the State of Ohio.)

Judge Kethledge’s high threshold for ambiguity has been extremely effective at limiting Chevron’s reach. As one commentator recently explained, “[f]or 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.” Chris Walker, Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference, 36 Yale J. on Reg.: Notice & Comment (June 22, 2018).

To some, it may seem unremarkable that Judge Kethledge closely scrutinizes the statutory text in every case. That is after all a judge’s job. But as Judge Kethledge has explained, Chevron can lead judges astray:

One of [Chevron’s secondary effects] is an effect upon the judicial branch, and on this point a metaphor comes to mind. Around this time of year I like to hunt for grouse (or partridge, as we call them in Michigan) with my son in the forests Up North. Sometimes the birds are in cedar swamps that are full of alder bushes and dense secondary growth. More than once I’ve decided that, even if the birds are in there, it’s not worth pushing through all those branches to get to them. Interpreting statutes like the Clean Air Act is often similar. The statute presents a dense undergrowth of sections and subsections and subsections within those. The answer to the specific question in the case might lie somewhere in those sections and subsections, but working through them is hard. And meanwhile the agency is there to offer a path already cleared. Down that path might lie a woodcock rather than a partridge, but both are game birds, and the judge might be tempted to conclude that under the circumstances a woodcock is good enough. And so in agency cases it often seems that the court pauses only briefly at step one, without much effort to hack through the undergrowth, before proceeding straightaway down the cleared path of step two.

Ambiguities and Agency Cases at 324.

An increasing number of judges have echoed these concerns about Chevron’s effects on the judiciary. Just last week, for example, Justice Kennedy announced that the Supreme Court should “reconsider … the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 585 U.S. __ (2018) (Kennedy, J., concurring) (slip op. at 3). He explained that some courts of appeals perform only a “cursory analysis” before deferring to the agency’s interpretation, and that such “reflexive deference” is “an abdication of the Judiciary’s proper role in interpreting federal statutes.” Id. at 2. Justice Kennedy thus called on the Court to rethink Chevron and make sure that courts comply with “constitutional separation-of-powers principles and the function and province of the Judiciary.” Id. at 3.

The Supreme Court could solve this problem by jettisoning Chevron altogether. Unless the Court does so, however, lower-court judges must resist the temptation of “reflexive deference.” That is what Judge Kethledge has done: he has dedicated himself to working through the statutory undergrowth “with as much energy and persistence as necessary in each case.” Agencies and Ambiguities at 327. He is thus doing his part “to preserve our constitutional separation of powers and thereby to maintain the rule of law.” Id.

Demanding a Reasoned Explanation

If all judges adopted a high threshold for ambiguity, as Judge Kethledge has done, it would sharply curtail judicial deference to agency interpretations of statutory text. But a high threshold for ambiguity would not eliminate Chevron: after all, some statutes are truly ambiguous. That leads us to the second way in which Judge Kethledge has minimized Chevron’s harm to the separation of powers—by refusing to defer to agencies that fail to justify their decisions.

The Supreme Court has explained that “[o]ne of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). That holds true under Chevron. Thus, “agencies must explain and justify their choices among permissible interpretations of ambiguous statutes” before they ask for deference. Gary S. Lawson, Reconceptualizing Chevron and Discretion: A Comment on Levin and Rubin, 72 Chi.-Kent L. Rev. 1377, 1380 (1997). And unless an agency has done so, Judge Kethledge will not defer to its statutory interpretation.

A recent example is Montgomery County v. FCC, 863 F.3d 485 (6th Cir. 2017). There, the FCC had promulgated two major orders interpreting the Communications Act. A group of local governments sued, arguing that the agency’s interpretation “undermine[d] various provisions of the Act” and that the orders “contain[ed] scarcely any explanation at all” for the FCC’s interpretation. Id. at 491. Although the FCC argued that its interpretation was entitled to Chevron deference, Judge Kethledge wrote a majority opinion that vacated the orders instead.

Judge Kethledge explained that the FCC had “offered no explanation as to why the statutory text allows [its interpretation].” Id. The agency had also “offered no explanation as to why the [local governments’] structural arguments are, as an interpretive matter, incorrect.” Id. And other than a “fleeting reference,” the FCC had failed to even define the relevant statutory terms. Id.

That was not enough for Judge Kethledge. “[I]f an agency wants the federal courts to adopt (much less defer to) its interpretation of a statute,” he explained, “the agency must do the work of actually interpreting it.” Id. But here, the “FCC’s orders reflect none of that work.” Id. Thus, Judge Kethledge vacated the relevant parts of the orders as arbitrary and capricious, and remanded to the FCC to “determine and explain anew” the statutory basis for its actions. Id. at 491–92.

Judge Kethledge has long held agencies to this high standard. Back in 2010, for example, he refused to defer to the U.S. Forest Service, explaining that “[a]n agency is not entitled to deference simply because it is an agency.” Meister v. U.S. Department of Agriculture, 623 F.3d 363, 367 (2010). Judge Kethledge recognized that “agencies are more specialized than courts are.” Id. But “agencies must do more than announce the fact of their comparative advantage; they must actually use it.” Id. And that meant that agencies “must apply—rather than disregard—the relevant statutory and regulatory criteria.” Id.; see also Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (refusing to give Chevron deference to an agency interpretation because the agency “bypassed the issue altogether, leaving us without the reasoned explanation that is a predicate to deferential review”).

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Judge Kethledge has repeatedly decried Chevron as a judge-made abdication of Article III power. See Zurich, 889 F.3d at 307–08; Ambiguities and Agency Cases at 323. Because he is on the court of appeals, rather than the Supreme Court, he lacks the authority to overrule Chevron altogether. But he has used the tools he has to limit Chevron’s damage to the separation of powers. By enforcing a high threshold for ambiguity, and by demanding that agencies justify their decisions, he has done his part to keep Article III power in Article III courts. And “[f]or purposes of our constitutional separation of powers,” that “matters a great deal.” Zurich, 889 F.3d at 307.

Charles J. Cooper is a founding partner and chairman of Cooper & Kirk, PLLC. Ryan Snyder previously served as a law clerk to Judge Kethledge, and currently practices law in Columbus, Ohio. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firms with which they are associated.

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