Notice & Comment

Justice Thomas, Brand X, and Baldwin

The Internet and academia are abuzz about Justice Thomas’s dissent from the Supreme Court’s denial of certiorari in Baldwin v. United States. Specifically, Justice Thomas called upon the Supreme Court to reconsider its 2005 decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services. The Court in Brand X held that an administering agency acting with the force of law — e.g., through notice-and-comment rulemaking — may adopt an interpretation of a statute it administers that is contrary to a pre-existing circuit court decision advancing a different interpretation, and reviewing courts must in such circumstances extend Chevron deference to the agency’s reasonable, contrary interpretation, irrespective of stare decisis. The opinion for the Court in Brand X was written by none other than Justice Thomas. In his dissent from the denial of cert in Baldwin, he said, “Although I authored Brand X, it is never too late to surrender former views to a better considered position” (internal quotation marks and brackets omitted).

From what I have read in the past 36 or so hours, and the reporters with whom I have spoken, some of the reactions to Justice Thomas’s Baldwin dissent have been mixed. Much of the media coverage is behind paywalls (e.g., Bloomberg Tax), unfortunately, though not all of it is. (See, e.g., Taxprof blog.) Ultimately, your reaction to Justice Thomas’s dissent may depend upon whether or not you see Justice Thomas’s opinion as A BIG DEAL. Some people do, others do not. Please put me in the “not” camp.

On the one hand, one should pay attention any time a Justice suggests reconsidering a decision, and most especially one that the Justice in question wrote in the first place. For another example, consider Justice Scalia and Auer deference. Many years after Justice Scalia wrote the opinion for the Court in Auer v. Robbins, he raised questions about and argued for reconsideration of Auer deference in the Talk America and Decker cases, ultimately leading to the Court’s narrowing of Auer deference first in 2012 in Christopher v. SmithKline Beecham Corp. and then last term in Kisor v. Wilkie.

Justice Thomas has previously raised doubts about the constitutionality of a particular conception of Chevron, for example in Michigan v. EPA, so his corresponding questions about Brand X should not be surprising. It is no great secret that other Justices (e.g., Justice Gorsuch and Justice Kavanaugh) have expressed concerns regarding Chevron, particularly in cases exhibiting the doctrine’s excesses. As Dick Pierce and I document in the Administrative Law Treatise, a growing chorus of judicial voices questions Chevron‘s premises. Justice Thomas’s Baldwin dissent certainly adds to that chorus. Commentators and litigants would be foolish to ignore the Justices’ criticism of Chevron.

On the other hand, the Court in Kisor only narrowed and did not repudiate Auer altogether. The Court has done a much better job of providing theoretical justifications for Chevron deference, and the Court has relied on Chevron substantially more frequently than it ever did Auer. I have expressed elsewhere my sincere doubts that will ever completely repudiate Chevron deference, and I still stand by my prior arguments. As regards Brand X, as others have observed, no one else joined Justice Thomas’s dissent in Baldwin.

As I had occasion to experience personally recently, a contingent of lawyers and law students exists that is absolutely, positively convinced that the Court is poised to overturn Chevron — lock, stock, and barrel. To my mind, however, the smart money is on the Court finding ways to carve back Chevron without repudiating it entirely. Overturning Brand X would do that in a sense, but I question whether repudiating Brand X altogether is the best route, given the breadth of some of the interpretive questions that Congress has declined to resolve itself. Consider the circumstances of Brand X, which not only involved notice-and-comment rulemaking but also the kind of statutory question that judges simply may not be so good at resolving using traditional tools of statutory interpretation (i.e., whether new technology fell within an old, under-defined statutory term). Justice Thomas in his Baldwin dissent raised the specter of such delegations violating the nondelegation doctrine, yet it is not at all clear the statutory question in Brand X (or for that matter the mailbox rule at stake in Baldwin) would violate the nondelegation doctrine even under the proposed alternative test described by Justice Gorsuch in Gundy v. United States.

My immediate skepticism regarding the merits of overturning Brand X outright notwithstanding, it is clear that the Justices, and likewise commentators, should think more thoroughly about Chevron‘s future if the Court decides not to overturn it. With that thought, I will close by noting that Aaron Nielson and I have an article, Narrowing Chevron‘s Domain, that is forthcoming in Duke Law Journal (and even sooner on SSRN) in which we address one way the Court might further limit Chevron‘s scope, with particular emphasis on agency adjudications. We will be helping Duke Law Journal to organize a symposium in 2021 on the same topic.

Cross-posted at (link fixed).

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