Deference on the SCOTUS

Much of the focus on the Supreme Court of the United States recently has been on the hot-button topic of same-sex marriage. But the Court has also released some interesting administrative law decisions in recent weeks.

The End of Auer Deference: Administrative Interpretations of Regulations
I previously posted some sceptical thoughts on the continuing applicability of so-called Auer deference, a doctrine. Pursuant to this doctrine, administrative decision-makers' interpretations of their own regulations are to be deferred to by courts unless plainly erroneous or inconsistent with the text of the regulation(s). I was pleased to see that, in Decker v. Northwest Environmental Defense Center, Justice Scalia called in a stirring opinion for Auer deference to be jettisoned. Here is a taste:

Congress cannot enlarge its own power through Chevron — whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way — the competing political branch — is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important. But when an agency interprets its own rules — that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Thomas Jefferson Univ., supra, at 525 (THOMAS, J., dissenting).

Here, Auer deference to the Environmental Protection Agency's interpretation of a regulation concerning storm-water run-off was decisive, Justice Scalia explaining persuasively why the regulation, read fairly, did not support the EPA's position. In a separate opinion, Chief Justice Roberts suggested that the Court would be open to argument on the continued vitality of Auer deference. Watch this space.

Deference as Respect
Another interesting recent American case is Wos v. E.M.A. Here, the minority opinion of interest is that of Justice Breyer. Without knowing it, I think Justice Breyer expressed very well the concept of "deference as respect" developed by David Dyzenhaus in a 1997 essay (and consistently misapplied by the Supreme Court of Canada and other Canadian courts).

Dyzenhaus' core idea is that interpretations of law by administrative decision-makers change the interpretive landscape and must as a result influence any interpretation arrived at by a court, the judicial role being to identify the reasons that best justify a given decision. There are surely echoes of this in the following passage from Justice Breyer's opinion:

Thus, even though this case does not fall directly within a case-defined category, such as "Chevron deference," "Skidmore deference," "Beth Israel deference," "Seminole Rock deference," or deference as defined by some other case, I believe the agency, in taking a position, nonetheless retains some small but special "power to persuade." And I would consequently to some degree take account of, and respect, the agency's judgment.

I cannot measure the degree of deference with the precision of a mariner measuring a degree of latitude. But it is still worth noting that the agency's determination has played some role in my own decision. That is because the agency, after looking into the matter more thoroughly (perhaps after notice-and-comment rulemaking), might change its mind. Given the nature of the question and of the agency's expertise, courts, I believe, should then give weight to that new and different agency decision. In my view, today's decision does not freeze the Court's present interpretation of the statute permanently into law. (My emphasis, citations omitted.)

Justice Breyer's explanation of why the position of the agencies administering the relevant statutes was not entitled to deference is also illuminating:

Here, however, the agency did not engage in rulemaking procedures, it did not carefully consider differing points of view of those affected, it did not set forth its views in a manual intended for widespread use, nor has it in any other way announced an interpretation that Congress would have "intended ... to carry the force of law." United States v. Mead Corp., 533 U.S. 218 , 221 (2001). Indeed, the agency does not claim that it exercised any delegated legislative power.

It is interesting to note the importance in this passage of (a) the application of expertise, (b) participation in the decision-making process, and (c) the extent of the delegation of authority to the agency. These are vital considerations in determining whether curial deference should be accorded, as I explain at length in chapters 2 and 3 of A Theory of Deference in Administrative Law.