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Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.

*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.

Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially.  For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation.  Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC).  By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2

Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices.

Prior to the passing of Justice Antonin Scalia, hope was rising among critics of deference that the Court might grant certiorari in cases that would allow them to reconsider, and potentially overrule, Auer and Seminole Rock.  An eligible case was actually pending on petition for certiorari at the time of Justice Scalia’s passing. The Court subsequently denied review—presumably because his absence reduced the total number of potentially favorable votes to three Justices—an insufficient number to grant review.6

Justice Thomas has written most powerfully about deference to agencies, equating deference with a constitutional violation.  In his Michigan v. EPA concurrence, Justice Thomas recognized two instances when such a constitutional violation might arise.  First, he expressed concern about judicial deference based upon a “presumption” that Congress intended for agencies, rather than courts, to resolve statutory ambiguities.7 Second, he expressed even greater concerns when the agency uses its discretion to exercise true legislative power.8

According to Justice Thomas, both scenarios raise “serious separation-of-powers questions”9 because they preclude judges from exercising their “independent judgment in interpreting and expounding upon the laws.”10 Since the Constitution “vests the judicial power exclusively in Article III courts, applying Chevron deference “wrests from courts the ultimate interpretative authority to ‘say what the law is’ and hands it over to the Executive.”11 Although Justice Thomas concurred in the result in Michigan v. EPA because the Court did not decide the case on deferential grounds, he emphasized that “we should be alarmed that [the EPA] felt sufficiently emboldened by these precedents to make the bid for deference that it did here.”12

Although one of the Court’s most recent decisions, Encino Motorcars, LLC v. Navarro, “chipped away” at Chevron to deny deference if agencies failed to provide adequate reasons to justify their statutory interpretations,13 this procedural requirement is a far cry from dismantling the doctrine itself.  The Court’s holding was definitively based on the agency’s failure to explain its reasoning—not upon hostility to Chevron deference:

Whatever potential reasons the Department might have given, the agency in fact gave almost no reasons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. … This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law.  …  It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.14

In another recent case, the High Court invoked Chevron to defer to the Patent and Trademark Office’s (PTO) construction of a patent claim according to its “broadest reasonable construction.”15 In doing so, the Court refused to limit PTO’s rulemaking authority under its governing statute to “procedural” issues and deferred to PTO’s interpretation that its power also extended to substantive concerns.16 Although Justice Thomas concurred in the majority’s result, he concluded that the Court avoided his “constitutional concerns” because the governing statute contained an “express and clear conferral of authority to the Patent Office to promulgate rules governing its own proceedings.”17

Since none of the Court’s decisions after Justice Scalia’s death demonstrate that a majority exists to abrogate deferential judicial review, the continuing expansion of federal regulatory power—or its curtailment—may decisively hinge on the outcome of the 2016 Presidential elections.  The perspectives of the person ultimately approved to fill the current vacancy may—or may not—support restricting federal regulatory discretion and power.  Unless the new justice shares the concerns of Chief Justice Roberts, Justice Thomas, and Justice Alito regarding the expanding “Administrative State,” challenges to deferential judicial review may remain unaddressed.

Despite the actual and potential opportunities available to the next President to appoint new justices, the future of deferential judicial review remains uncertain.  Each type of judicial deference could succumb to arguments accepted by a “conservative” majority in the next administration—or alternatively be sustained and strengthened by a “liberal” majority less receptive to reform. Nothing less than the expansion or curtailment of the “Administrative State” is at stake.  Although other issues may have more immediate appeal, few have more significant consequences for our liberty.


  1. Marbury v. Madison, 5 U.S. 137 (1803).
  2. See The Federalist No. 58 (1788) (James Madison) (“An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”) (emphasis added).
  3. Jonathan Turley, The Rise of the Fourth Branch of Government, Wash. Post. (May 24, 2013).
  4. As Chief Justice Roberts recently observed, “the danger posed by the growing power of the administrative state cannot be dismissed.” FCC v. City of Arlington, 133 S. Ct. 1863, 1877 (2013) (Roberts, C.J., concurring, joined by Alito, J.).
  5. See Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).
  6. See Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir. 2015), cert. denied, 136 S. Ct. 1607 (May 16, 2016) (Thomas, J., dissenting in favor of review to address viability of Auer and Seminole Rock deference).
  7. 135 S. Ct. 2699, 2712 (2015), citing Smiley v. Citibank (South Dakota), 517 U.S. 735, 740-741 (1996) (applying Chevron deference because of a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”).
  8. Id. at 2712, citing United States v. Mead, 533 U.s. 967, 983 (2005) (noting that agencies “speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law” even when “Congress did not actually have an intent as to a particular result.”).
  9. Ibid.
  10. Ibid.; see also Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1217 (2015) (making similar point in context of Auer deference).
  11. Ibid., citing Marbury v. Madison, 1 Cranch. 137, 177 (1803).
  12. Id. at 2013.
  13. 579 U.S. at ___, Slip Op. at 12 (June 20, 2016).
  14. Ibid.
  15. Cuozzo Speed Technologies v. Lee, 579 U.S. ___, Slip Op. at 17 (June 20, 2016).
  16. Id. at Slip. Op. 13-14.
  17. Ibid (Thomas, J. concurring, at 2).