By Jeremy J. Broggi, an associate, and Bert W. Rein, a founding partner, of Wiley Rein LLP in Washington, DC.

The policymaking power routinely exercised by unelected officials in federal agencies is under pressure from both sides of the ideological spectrum.  On the right, libertarians and regulated businesses rail against the “deep state.”  On the left, there is concern about a deregulatory Executive Branch’s new and revised statutory interpretations by.  Both sides turn to the courts for relief.

A majority of the U.S. Supreme Court under Chief Justice John Roberts has shown some sympathy for the Trump Administration’s revisions of prior regulatory policies but continues to express discomfort with an administrative state that “wields vast power and touches almost every aspect of daily life.”  See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010).  While the Court’s reining in of regulation has so far been limited, an important dissent from Justice Gorsuch in Gundy v. United States, 139 S. Ct. 2116 (2019), may foretell a broader effort.  There, Justices Gorsuch, Roberts, and Thomas articulated a vision for restoring congressional accountability for administrative regimes by revitalizing the long-dormant nondelegation doctrine.  Although their view did not command a majority in Gundy, the dissent may presage a coming sea change in judicial review of agency rules implementing broad Congressional directives.  

The Status Quo

For 35 years, Justice Stevens’ opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), has provided a deferential framework for judicial review of agency actions.  Under Chevron, if a statute is silent or ambiguous on the legal basis of the agency’s action, the reviewing court must defer to an agency’s permissible construction.

The most common application of Chevron is in the rulemaking context.  There, Chevron is premised on a theory of implied delegation: when Congress leaves a statute ambiguous, Congress intends the agency, rather than the courts, to exercise whatever interpretive discretion that ambiguity allows.  Accordingly, under Chevron, a reviewing court must determine whether the statute contains an ambiguity.  If so, the Court will uphold an agency’s “reasonable” interpretation of that ambiguity even if it is not the “best” interpretation.

Litigants challenging agency rulemaking have chafed under Chevron.  And the doctrine has allowed the power of unelected government to expand.  Nevertheless, the Supreme Court has been unwilling to reconsider Chevron.  Moreover, the Court’s refusal last term to overturn Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)—a case establishing Chevron-like deference for agency interpretations of their own rules (rather than statutes)—has led many to conclude that Chevron is now more entrenched than ever.

A Potential Limit

Gundy may open a new path for curbing Chevron deference without transferring interpretive authority from agencies to the courts.  In Gundy, the Attorney General promulgated rules implementing the Sex Offender Registration and Notification Act (SORNA) under a broad and vague statutory mandate to deal with sex offenders who had completed serving their sentences before its enactment.  Petitioner Herman Gundy, a convicted sex offender in that category who failed to register under the Attorney General’s rules, argued that the rules were void because SORNA unconstitutionally delegated legislative power to the Attorney General.

The Court, led by Justice Kagan, rejected Gundy’s petition in a 5-3 vote, holding that SORNA provided the Attorney General’s with enough policy guidance to draft reasonable rules.  Justice Alito concurred in the result but declined to join Justice Kagan’s opinion.  He expressed sympathy for the dissent and indicated his willingness to change his position in a future case.  Justice Kavanaugh did not participate in Gundy.

Justice Gorsuch authored the dissent.  Relying on two New Deal-era nondelegation decisions long thought consigned to the dustbin of history, Justice Gorsuch argued that SORNA was unconstitutional because it gave the Attorney General too much interpretive discretion on a central policy issue.  He also noted that, even under Chevron, the Court has sometimes refused to defer to agency interpretations of statutes affecting “major questions” of policy:  “Although it is nominally a canon of statutory construction, we apply the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.”  Justice Gorsuch laid a doctrinal foundation for the test the Court has employed when rejecting deference to agencies in “big” cases.  At the same time, however, Justice Gorsuch would ensure that the judiciary’s role is a limited one so courts are not tempted to supply the “most reasonable answer” to major policy questions Congress had not resolved.  In his view, the constitutionally correct remedy was to return the responsibility for policy decisions to Congress by voiding the vague statute itself.

In attempting to delineate the contours of a revived nondelegation doctrine, Justice Gorsuch articulated what he deemed the three categories of permissible congressional delegations to the other branches:  (1) delegations of authority to “fill up the details” of defined congressional programs; (2) delegations of authority to make factual determinations that trigger statutorily defined consequences; and (3) delegations of authority to carry out “non-legislative responsibilities” within the scope of functions assigned to the Executive Branch to the courts by Articles II or III of the Constitution.

Future Developments

Were Justice Gorsuch’s dissent to command a future majority with Justices Alito and Kavanaugh, the non-delegation doctrine would reset administrative litigation strategy for both challengers and defenders of agency rules.  Under current law, challengers argue that an agency has departed from a specific congressional directive.  They argue, in other words, that the statute cabins the agency’s discretion and that the agency transcended the limit.  Regulators, on the other hand, typically argue that the statute is ambiguous, because Congress wanted the agency to make an expert, reasonable choice between alternative policy resolutions within a broad area of discretion.  Most challenges are won or lost on this basis; if the analysis turns on the reasonableness of the agency’s decision, the agency almost always prevails.

A revived nondelegation doctrine would force both sides to rethink current strategies.  Challengers unable to establish that Congress mandated a particular legal interpretation may argue that if Congress left interpretation to agency discretion, it evaded its legislative responsibility.  Conversely, agencies may have to contend initially that their regulations merely implement specific congressional directives, thus avoiding nondelegation challenges.  Alternatively, agencies may argue that if Congress delegated discretionary authority to the agency, the delegation fell within the areas Justice Gorsuch recognized as permissible.  Defining the boundaries of those areas will require a case-by-case development of wholly new principles of nondelegation law.  But agencies regulating within those boundaries would have a strong argument that Chevron deference should then apply to support their decisions.

Of course, litigants can have no assurance that Justice Gorsuch’s dissent will become a majority view.  But Justice Alito’s expression of sympathy for the dissent, and similar concerns articulated by then-Judge Kavanaugh at the court of appeals and in his academic writing, strongly suggest that possibility.  Accordingly, where challengers face limited prospects of establishing an express congressional directive, it might even be wise to acknowledge a congressional delegation of authority and then attack the legitimacy of that delegation.

Faced with the prospect of a revitalized nondelegation doctrine, the administrative state would likely seek to expand the categories of permissible delegations with the hope that exceptions will swallow the rule and thus reinter the doctrine.  Agencies could find sympathy in lower courts that want to preserve the full scope of federal government activity and may be sensitive to the potential for paralysis in forcing Congress to make hard decisions.  But Justice Gorsuch’s dissent relies on far more than a technical analysis.  Harking back to the Founders’ philosophy and the importance of making legislation run the gauntlet of checks and balances, Justice Gorsuch sees the separation of powers as an assurance that the federal government would limit the scope of its activity and its intrusions into individual liberty.  Justice Gorsuch clearly seems willing, if not eager, to curb not only agency policy discretion but the scope of federal activity fostered by the ease of delegating authority to a host of “expert” agencies.

The administrative state, having long expanded under the protection of Chevron, may soon be in for a rougher ride.