Notice & Comment

D.C. Circuit Review – Reviewed: Out with the Old (and In With the Older?)

Once again, there was not a lot of action at the D.C. Circuit this week, at least in terms of opinions, as no new ones were released. Like the Supreme Court, the D.C. Circuit (generally) stops hearing cases before the summer. Then in the fall it starts again. So soon, the court will start issuing more opinions. (The Chief Justice, in his younger years, once joked that “only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” You may be able to add the D.C. Circuit to that mix, though, to be sure, some work gets done over the summer.) Before things heat up, there is time to think about big ideas. In that spirit, let’s take five minutes to review the administrative law cases that Justice Thomas might vote to overrule.*

First, look at Department of Transportation v. Association of American Railroads — the “Amtrak case.” In his opinion concurring in the judgment, Justice Thomas attacks the Court’s nondelegation doctrine. Indeed, he declares that the Court “should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power.” Along the way he challenges:

The “intelligible principle” test in J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928): “Although the Court may never have intended the boundless standard the ‘intelligible principle’ test has become, it is evident that it does not adequately reinforce the Constitution’s allocation of legislative power.”

Currin v. Wallace, 306 U.S. 1 (1939) and United States v. Rock Royal Co-operative, Inc., 307 U.S. 533 (1939): “In any event, these precedents [referring to Currin and Rock Royal] are directly contrary to our more recent holding that a discretionary ‘veto’ necessarily involves an exercise of legislative power. See INS v. Chadha, 462 U. S. 919 (1983) . . . . As such, Currin and Rock Royal have been discredited and lack any force as precedents.”

Mistretta v. United States, 488 U.S. 361 (1989): “The Framers’ dedication to the separation of powers has been well-documented, if only half-heartedly honored [in cases like Mistretta].”

Whitman v. American Trucking Ass’ns., Inc., 531 U.S. 457 (2001): “Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great.”

A handful of other intelligible principle cases, including American Power & Light Co. v. SEC, 329 U.S. 90 (1946) and Yakus v. United States, 321 U.S. 414 (1944), cases that he notes came during the Progressive Era, a time of “upheaval in our delegation jurisprudence.”

Second, consider Perez v. Mortgage Bankers Association — the “Paralyzed Veterans case.” In his opinion concurring in the judgment, Justice Thomas challenges the idea that agencies should receive deference when interpreting their own regulations. He states that such “deference amounts to a transfer of the judge’s exercise of interpretative judgment to the agency” and “undermines the judicial ‘check’ on the political branches.” Along the way he questions:

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945): “In setting out the approach it would apply to the case, the [Seminole Rock] Court announced — without citation or explanation — that an administrative interpretation of an ambiguous regulation was entitled to ‘controlling weight’ . . . . From this unsupported rule developed a doctrine of deference that has taken on a life of its own.”

Justice Thomas also questions a host of other cases illustrating the expansion of Seminole Rock, including Pauley v. Beth Energy Mines, Inc., 501 U.S. 680 (1991) (giving deference to an “agency’s interpretation of another agency’s regulation”); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (deferring to an agency’s re-interpretation of its own regulation); and Auer v. Robbins, 519 U.S. 452 (1997) (deferring to an agency’s informal interpretations).

Third, turn to B&B Hardware v. Hargis — the “administrative preclusion case.” In his dissent, Justice Thomas rejects the idea that agency adjudications presumptively (or maybe ever) should have issue preclusive effect in later judicial proceedings. (Indeed, he states that “[a]dministrative preclusion . . . threatens to ‘sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our own system.’”) Even though the parties did not question that such a presumption exists, Justice Thomas does. In so doing, the Justice expresses doubts about:

Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104 (1991): “Despite rejecting the availability of preclusion, the Court nevertheless, in dictum, announced a presumption in favor of giving preclusive effect to administrative determinations ‘where Congress has failed expressly or impliedly to evince any intention on the issue.’ That dictum rested on two premises. First, that ‘Congress is understood to legislate against a background of common-law adjudicatory principles.’ And, second, that the Court had ‘long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.’ I do not quarrel with the first premise, but I have serious doubts about the second. The Court in Astoria offered only one decision predating the enactment of the ADEA to shore up its assertion that Congress had legislated against a background principle in favor of administrative preclusion [United States v. Utah Construction & Mining Co.] And that decision cannot be read for the broad proposition asserted by the Court.”

United States v. Utah Constr. & Mining Co., 384 U. S. 394 (1966): “Like Astoria itself, Utah Construction discussed administrative preclusion only in dictum. . . . To create a presumption based solely on dictum would be bad enough, but the principles Utah Construction referred to were far too equivocal to constitute ‘long established and familiar’ background principles of the common law of the sort on which we base our statutory inferences.”

Fourth, look at Wellness International Network v. Sharif — the “world will end not in fire, or ice, but in a bankruptcy court” case (I’ve written about this case before; it offers a real insight into how Chief Justice Roberts views administrative law). Justice Thomas, in dissent, questions whether parties can consent to non-Article III adjudication of private rights: “Our duty is to enforce the Constitution as written, not as revised by private consent, innocuous or otherwise.” Once more, Justice Thomas questions precedent:

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986): “Rather than attempt to grapple with these problems, the majority seizes on some statements from [Schor] to resolve the difficult constitutional issue before us. But to the extent Schor suggests that individual consent could authorize non-Article III courts to exercise the judicial power, it was wrongly decided and should be abandoned.”

Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985): “Another strain of cases has confused the distinction between private and public rights, with some cases treating public rights as the equivalent of private rights entitled to full judicial review, American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902), and others treating what appear to be private rights as public rights on which executive action could be conclusive, see, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401–404 (1940). . . . Perhaps this confusion explains why the Court has more recently expanded the concept of public rights to include any right ‘so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.’ [Thomas, 473 U.S. at 593–594.] A return to the historical understanding of ‘public rights,’ however, would lead to the conclusion that the inalienable core of the judicial power vested by Article III in the federal courts is the power to adjudicate private rights disputes.”

Fifth, review Michigan v. EPA — the “hey EPA, you can’t make post hoc arguments” case. Justice Thomas, concurring, calls into question the idea that courts should defer to agency interpretations of ambiguous statutes. Thomas writes: “Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here. As in other areas of our jurisprudence concerning administrative agencies, we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency ’interpretations’ of federal statutes.” Again, he puts precedent on the chopping block:

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): “These cases bring into bold relief the scope of the potentially unconstitutional delegations we have come to countenance in the name of Chevron deference. What EPA claims for itself here is not the power to make political judgments in implementing Congress’ policies, nor even the power to make tradeoffs between competing policy goals set by Congress. It is the power to decide — without any particular fidelity to the text — which policy goals EPA wishes to pursue.”

Sixth, and finally, take a peek at Texas Department of Housing v. Inclusive Communities Project — the “Griggs 2.0” case. In dissent, Justice Thomas expresses his displeasure with how disparate-impact liability came to be: “The author of disparate-impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission . . . . The lack of legal authority for their agenda apparently did not trouble them much.” Hence, Justice Thomas adds another case to his list:

Griggs v. Duke Power Co., 401 U.S. 424 (1971): “[T]he foundation on which the Court builds its latest disparate-impact regime — Griggs v. Duke Power Co., 401 U.S. 424 (1971) — is made of sand. . . . We should drop the pretense that Griggs’ interpretation of Title VII was legitimate.”

To be sure, Justice Thomas doesn’t call for all of these cases to be overruled (though he also doesn’t not call for them to be overruled). But he has turned his attention to administrative law. Whether you agree with him or not, these opinions are worth reading. (You can bet the D.C. Circuit judges and clerks have read them.)

* Next week, Justice Thomas is coming to BYU Law. In preparation, I’ve recently reviewed his administrative law opinions from last Term. This list of cases comes from those opinions. If he has called for other administrative law precedent to be overruled, let me know and I’ll update the list.

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