Justice Thomas’s Opinions on Administrative Law This Term

by Andrew Hessick — Thursday, July 23, 2015@andyhessick

In recent terms, several justices have expressed concern about the breadth of powers held by administrative agencies. Those views have been expressed in concurrences and dissents. Agencies accordingly have not seen substantial changes to their authority—though one notable exception is King v. Burwell, which resulted in the Court strengthening Chevron step zero by saying that agencies presumptively do not have interpretive authority over statutes presenting policy issues of serious economic and political significance.

One Justice who launched particularly notable attacks on the administrative state this Term is Justice Thomas. In at least five separate opinions, Justice Thomas challenged various doctrines of administrative law. These opinions are notable not only for their number. They are also significant because, as Brian Lipshutz has noted on the Yale Law Journal Forum, they represent the first serious originalist assessment on administrative law by a member of the Court.

They are also significant because they attack so many areas of administrative law. He challenged Auerdeference, Perez v. Mortgage Bankers Association 135 S. Ct. 1199 (Thomas, J., concurring in the judgment); Chevron deference, Michigan v. EPA, 135 S. Ct. 2699 (Thomas, J., concurring); delegation of rulemaking power, Department of Transportation v. American Association of Railroads, 135 S. Ct. 1225 (Thomas, J., concurring in the judgment); and agency adjudication of private rights, B&B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293 (Thomas, J., dissenting); Wellness International Network, Ltd. v. Sharif, 135 S. Ct. 1932 (Thomas, J., dissenting).

Justice Thomas’s views in these opinions did not command a majority; indeed, no one joined any of these opinions except for his dissent in B&B, which Justice Scalia joined. But they are still important. The other justices who have expressed concern about agency power have focused more on pragmatic concerns and the text of statutes such as the APA. The originalism arguments provide new tools for pressing that position. Maybe a majority will buy into some of those arguments in the future—much as originalism eventually prevailed in the sentencing and Confrontation Clause context. And the sheer volume of Justice Thomas’s opinions this Term suggest that he is not going to stop making the arguments any time soon.

Even if the originalist views do not prevail, they are useful because they may provide new insights into the appropriateness of delegation and deference to administrative agencies—issues that (with the exception of nondelegation) have divided the justices and produced decisions in tension with each other. Now that a justice has expressed interest in originalist arguments, they will almost certainly gain more airtime. Litigants in future cases devote more time to them in their briefs, and scholars will probably produce more on them.

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