ABA JOURNALChemerinsky: How the Roberts Court could alter the administrative stateBYERWIN CHEMERINSKYSEPTEMBER 4, 2019, 6:00 AM CDTIt has been widely predicted that the Roberts Court will impose significant new limits on the administrative state, especially by increasing judicial review of agency decisions.Both Justices Neil M. Gorsuch and Brett M. Kavanaugh, as federal court of appeals judges, urged less judicial deference to the decisions of federal administrative agencies. The court certainly had the opportunity to do this in the October 2018 term, but it didn’t happen.Of course, that doesn’t mean that it won’t happen in the terms ahead. In fact, some of the cases suggest that such limits might be on the horizon. There were three important administrative law decisions last term, and each could have important future implications.GUNDY V. UNITED STATESThere long has been a principle that Congress cannot delegate its legislative power, including to administrative agencies. But the Supreme Court last struck down federal laws as unconstitutional on this basis in 1935 when it invalidated provisions of the National Industrial Recovery Act as impermissible delegations inPanama Refining Co. v. RyanandSchechter Poultry Corp. v. United States.In the 80-plus years sincePanama OilandSchechter, not a single federal law has been declared an impermissible delegation of legislative power. Although these decisions have not been expressly overruled, they never have been followed either. All delegations, no matter how broad, have been upheld. Although the court says that when Congress delegates its legislative power it must provide criteria—“intelligible principles”—to guide the agency’s exercise of discretion, all delegations, even without any criteria, have been upheld.Undoubtedly, this reflects a judicial judgment that broad delegations are necessary in the complex modern world and that the judiciary is ill-equipped to draw meaningful lines.Reviving the nondelegation doctrine would be a powerful way to impose significant limits on the administrative state. The court had the chance to do so inGundy v. United States.The Sex Offender Registration and Notification Act makes it a federal crime for a person to cross state lines if he or she is a convicted sex offender who did not register as required by law. The Act leaves open many questions, including the application of the law to those convicted before the law was enacted. These matters were left to the attorney general to resolve.Herman Gundy, who was convicted under SORNA pursuant to the attorney general’s application of the statute, argued that this was an impermissible delegation of power to the executive branch of government. In a 5-3 decision (it was argued before Kavanaugh was confirmed), the court rejected Gundy’s argument and again refused to revive the nondelegation doctrine.Justice Elena Kagan wrote the plurality opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. She declared this an “easy” case and explained that the statute gives an intelligible principle to the attorney general. She wrote that under the statute, “the attorney general must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment. That delegation easily passes constitutional muster.” She said that “(i)ndeed, if SORNA’s delegation is unconstitutional, then most of government is unconstitutional.”Justice Samuel A. Alito, was the fifth vote for the majority, concurring in the judgment. He wrote a brief enigmatic opinion stating: “If a majority of this court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”Justice Gorsuch wrote a strong dissent, joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas. He said that he “would not wait” to revive the nondelegation doctrine and that SORNA should be declared unconstitutional as violating that principle.With Kavanaugh on the bench, it is easy to see five justices who will be willing to revive the nondelegation doctrine and bring about a dramatic change in administrative law. It is puzzling, though, as to why Alito did not vote with the other conservatives to create a 4-4 tie and have the case reargued with Kavanaugh on the bench. That is exactly what happened last term inKnick v. Township of Scott, Pennsylvania, which was reargued and then decided 5-4 with the conservative justices in the majority.KISOR V. WILKIEInAuer v. RobbinsandBowles v. Seminole Rock & Sand Co., the Supreme Court articulated the principle that courts should defer to agencies’ reasonable readings of ambiguous regulations. The court granted review inKisor v. Wilkieon the question of whether these cases should be overruled. Kagan, writing for the court said, “We answer that question no.Auerdeference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits.”James Kisor, a Vietnam veteran who suffers post-traumatic stress disorder, applied for benefits. The Veteran’s Administration interpreted its own regulations to deny them. The court used this case as the vehicle for considering whether to overruleAuerdeference.Kagan’s opinion detailed the reasons forAuerdeference. But she also stressed that such deference is appropriate only if a regulation is genuinely ambiguous, if the agency’s interpretation of the rule is reasonable, and “if the character and context of the agency interpretation entitles it to controlling weight.” To meet the latter, the regulation must be the “authoritative position” of the agency, within the scope of the agency’s substantive expertise, and reflect the “fair and considered judgment” of the agency.Roberts was the fifth vote for the majority and wrote separately to say he agrees that “overruling those precedents is not warranted.” But he stressed thatAuerdeference is limited by the requirements set forth in Kagan’s opinion.Gorsuch wrote an opinion concurring in the judgment (because he agreed with the result in this case), but that was clearly a dissent as to overrulingAuerdeference. He declared: “It should have been easy for the Court to say goodbye toAuer v. Robbins. … A legion of academics, lower court judges, and Members of this Court—evenAuer’sauthor—has called on us to abandonAuer. Yet today a bare majority flinches, andAuerlives on. Still, today’s decision is more a stay of execution than a pardon.”Lurking in the background is how the court will deal with a related doctrine—Chevrondeference—which says that courts should defer to agency interpretation of the statutes that they enforce. (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,1984). Indeed, in a footnote, Gorsuch said, “there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.”Indeed, there may be five votes in a future case to overrule, or greatly limit,Chevrondeference.DEPARTMENT OF COMMERCE V. NEW YORKFor much of American history, through the 1950 census, there was a question on the census forms about citizenship. From 1960 to 2000, the census form that went to everyone did not include such a question, but a longer form that went to some people asked about citizenship. The question was discontinued out of concern that it would discourage noncitizens from completing the form. An accurate enumeration of the population is essential; much depends on it, ranging from apportionment of the House of Representatives to the allotment of federal money.Secretary of Commerce Wilbur Ross decided to include a question about citizenship on the 2020 census. Federal district courts enjoined this, both as violating the Administrative Procedures Act and the Constitution’s requirement for an accurate enumeration of the population. The Supreme Court granted the government’s request for expedited review based on the need for resolving the issue by June 30 to have census forms printed.In a 5-4 decision, the Supreme Court held that the United States failed to offer a sufficient justification for its decision to meet the requirements of the Administrative Procedures Act. Roberts wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The court held that it did not violate the Constitution or the Census Act to ask a question about citizenship.But the court concluded that “viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the [Voting Rights Act].” As the court explained, there was no evidence in the administrative record that asking this question would enhance enforcing of the Voting Rights Act. The court remanded the case to the agency to give it a chance to justify the question. Subsequently, the Trump administration decided not to proceed because of the need to get the census forms printed.The dissenters stressed the need for great deference to the agency. Thomas, for example, said: “Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The court correctly answers these questions in the affirmative. That ought to end our inquiry.”It was interesting to see the conservative justices, who generally want more judicial oversight of federal agencies, here argue for much greater deference.IN CONCLUSIONThis, of course, was just the first term with Gorsuch and Kavanaugh on the bench. There were no major changes in administrative law. But perhaps they are to come.