Aaron Nielson, "The Past and Future of Deference: From Justice Scalia to Justice Gorsuch"

With commentary by Professor Daniel Hemel

Professor Nielson is a law professor at Brigham Young University and teaches/writes in the areas of administrative law, civil procedure, federal courts, and antitrust. Before joining the faculty, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP. He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Nielson received his J.D. from Harvard Law School. Following graduation, he was awarded a Harvard Law School Post-Graduate Research Fellowship. Professor Nielson also received an LL.M from the University of Cambridge, where he focused his studies on the institutions that regulate global competition and commerce. He received his undergraduate degree from the University of Pennsylvania, majoring in economics and political science.

Daniel Hemel’s research focuses on taxation, risk regulation, and innovation law. His current projects examine the effect of tax expenditures on inequality; the role of cost-benefit analysis in tax administration; and the use of tax incentives to encourage knowledge production. As an assistant professor at the University of Chicago Law School, he teaches tax, administrative law, and torts. Daniel graduated summa cum laude from Harvard College and received an M.Phil with distinction from Oxford University, where he was a Marshall Scholar. He then earned his J.D. from Yale Law School, where he was editor-in-chief of the Yale Law Journal. Prior to his appointment, he was a law clerk to Associate Justice Elena Kagan on the U.S. Supreme Court. He also clerked for Judge Michael Boudin on the U.S. Court of Appeals for the First Circuit and Judge Sri Srinivasan on the U.S. Court of Appeals for the District of Columbia Circuit, and served as visiting counsel at the Joint Committee on Taxation.

Presented on April 26, 2017, by the Federalist Society.

Transcript

This audio file is a production of the University of Chicago law school. Visit us on the web at www.uchicago.edu.

Host: My name is Jeremy Rosanski, one of the incoming programming directors for the Federalist society here at the University of Chicago. And we're pleased to welcome professor Aaron Nielsen from Brigham Young University Law School. Professor Nielson teaches and writes on administrative law in federal courts. He was previously a graduate of Harvard law school, Cambridge University of the University of Pennsylvania. He clerked for Judge Jerry Smith, Judge Janice Rodgers Brown and Justice Samuel Alito, and finding our response to professor in Nielsen is our own professor Daniel. who is no stranger to the society as an interlocutor and uh, they actually recently cowrote Chevron step one and a half, I guess, in somewhere in the gestation of publication. So without further ado, please welcome Professor Nielson.

Nielson: Well, thank you. Thank you. I'm excited to be here. I'm also excited. Professor Hemel says that he has never been able to make the laser pointer work. But Watch. There we go. There we go. I can make it go back because yeah, all right. So, I'm going to tell you right now upfront this is going to be a little bit schizophrenia and the reason why is administrative law is changing. So by the time I got the invite to now, things have happened. So you're going to kind of see the evolution of my presentation through what's been happening with administrative law. When I was initially invited to come, they wanted to hear Justice Scalia's evolving views on Chevron. So that was the presentation that I had. That's all changed because now we have somebody who, we'll see where he evolves. But Justice Gorsuch's views appear very strong already on Chevron. So we'll seeing how all that plays out. So this is how I hope to do this. At first I'm going to talk about the evolution of Justice Scalia on this point. Then I'm going to take a few minutes to talk about Justice Gorsuch and some of my own thoughts for what the court should be thinking about when it comes to questions of deference. And then finally, hopefully I can tie these two things together. So let's get started. Where to start with justice Scalia's evolving views on deference. This is a true picture of Justice Scalia. Um, you can see how much things have changed since the 1980s. He smoked a pipe during his confirmation hearings. I wonder how that would have gotten over if, Justice Gorsuch would have just taken out a Sherlock Holmes pipe at that, maybe he would have been more of a corn cob type. I'm not sure, but it's really interesting. So, I'm going to talk about how Justice Scalia's views changed on Chevron, but to do that, I'm really not going to talk about Chevron at all. Instead, I'm going to talk about Chevron's cousin, Seminole Rock deference. And there you can see Justice Scalia's evolution on deference, the most, uh, obvious. So we're starting off with the history of Seminole Rock deference from 1945. The language, this is the famous language. Um, you know, the ultimate criterion is administrative interpretation, which becomes a controlling weight unless it is plainly erroneous or it could be said with the regulation. And this is the language that's now quoted all of the time when an agency is interpreting its own regulation and it's taken on very large status in evaluating whether the agency is going to win. But it's interesting, at least as a historical matter, the Seminole Rock deference as we know it is not the deference that the Supreme Court intended to create. Here we go. Alright. Uh, initially, um, I'm right now, I'm cribbing, uh, this is from Sani Knutsen and Amy Wildermuth's wonderful article in Emory Jaw journal, which is about the history of this and it's in fact the case, and I now have gone back and I've checked, for the first long time after the decision was announced it was not cited very often and wasn't cited for a big proposition and that's some type of the specific context of the case. It was understood as requiring a formal statement of the agency's interpretation that formal interpretation had to be issued contemporaneously with the decision itself. And for the first long time it was limited to the price control context in which it arose. Um, so this was a very narrow doctrine and you don't have to take my word for it. Um, Professor Kenneth Cole Davis, one of the legends of Administrative Law, um, wrote a lot of articles in the 1950s and he said this entire thing is hardly more than dictum. Um, that's how it was understood five years after the decision, of course eventually started expanding it as they are wont to do sometimes. Um, and you read their article, they go through this, um, especially in the DC circuit. The DC circuit latched onto this and started making a bigger and bigger and eventually it culminated in, uh, Justice Scalia's decision in Auer v Robbins. And if you hear anything about Seminole Rock deference, they will often call it Seminole Rock slash Auer deference or sometimes they'll just call it Auer deference, the two terms have become synonymous. And this was written by Justice Scalia. Uh, but the thing that you have to understand about our deference is our deference is not like Seminole Rock deference, or at least Seminole Rock deference as originally understood. Um, they're synonyms. So at least in the popular vernacular, I guess there's no popular vernacular, but among, uh, among lawyers, but this is Seminole Rock on steroids. They don't require the things that were at issue with Seminole Rock. It doesn't have to be a contemporaneous interpretation. It can be a long distant interpretation and it can be, uh, changed interpretation. Likewise, it doesn't have to be in a formal document or anything like that by the agency. Sometimes even as in Auer, an Amicus brief, they'll send an Amicus Brief in a litigation that's been ongoing. Of course, Oh! Okay. Now we know your interpretation and we're going to defer. Uh, and this, this is the law right now, the United States, and I think it's important to kind of pause for a second and say this is from Justice Scalia. I did a quick google of arch conservative Scalia. Um, and this is the picture that came up, it's actually quite easy to find bad pictures of the conservative justices. Um, there's, there's a lot of them. So I'm just going to pause for one second. There's just a quick aside, uh, I clerked for Justice Alito and as far as I'm aware, there has never been a good photo published of Justice Alito that I've ever seen. So let's just pause for a second. Here we go. The grainy, grainy, um, Alito in the Tuxedo with kind of a sneer, um, that's not a good picture if you see that you're like, you're not doing well in your media relations or this one where he is, I'm wearing the Tuxedo, looking down and reflecting on, on what the deeds he has done in his past sins. This is the worst one. They just took like the group photo,, and it's a bad group photo and they just blow up his face and they just show that. So I am duty bound as a, as a legal clerk to give you a good picture of Justice Alito. Um, here we go. Uh, he actually is a very funny and friendly man. He is personal friends with Santa Claus. Um, but you'll never know that because if you read the media reports, I'm, you'll say, look, there's the Conservatives and Scalia is very much in that group.So you'd say Scalia, how is it that Scalia, I'm far from being the one who's like, you know, fighting back on deference. He is the most, uh, he wrote Auer, which is the most expansive deference that the Supreme Court has. Um, so one lesson from that, if you take nothing away from, if you take nothing else but this, um, read the newspaper, but, um, there's more going on than the newspaper sometimes lets on. Justice Scalia, his views on these issues, all of these Justices' views are very different. Um, so, um, here's the key. This is one of the cases, if you want to understand Justice Scalia's cases, uh, Justice Scalia hated mushy five-part balancing tests. Of all things that Justice Scalia hated, and there are many, many things about the law that he thought that we've, we've gone off track, balancing tests were the worst. And I think, again, I don't know for sure why he wrote Auer, the way that he did. Um, I suspect that he thought in all of these contexts, limitations, all of these are just invitations for confusion and complexity that we don't need. By the way, the rule of law is law rules, I believe was some competence is the most cited law review articles, the history of the University of Chicago Law Review. I'm, I'm fairly certain that is true and it's great and you should read it. It's really good. Um, you know, just as an aside, uh, recently, uh, Steve Calabrese and Gary Lawson have written a response to this article, the Notre Dame law review, which I think is called the rule of law is the rule of law, um, and says, well, sometimes laws, rules and sometimes it's not. Um, but for Justice Scalia, the default was I need to have some sort of rules and framework and if it's a bunch of contextual limitations on something, it's not really going to work. Um, so I think he wrote our that way very broadly because that way it's easy and clean to administer. Um, but then a funny thing happened, and this is where the story starts to starts to change. One of Justice Scalia's law clerks. John Manning at Harvard wrote would become one of the most significant law review articles in recent decades, at least in administrative law, if you just want to base it on real world impact. He wrote the, Professor Manning said, you know, it takes, takes Chevron, put that over here. Seminole Rock is different because it has - with Chevron, Congress passes a law and the agency interprets it, but with Seminole Rock the agency promulgates regulation, and then interprets the very thing that it promulgated and you'll go back historically that particular combination of powers which is considered particularly pernicious. Um, so he goes back to Montesquieu and Blackstone and Locke and said this violates a long tradition against self interpretation. Um, and Justice Scalia found this and it completely changed his views on Seminole Rock. Um, so the first was talk America where he just isn't concurring. Um, and he started, you know, started saying, oh, well, I guess I'll quote briefly, um, for awhile in the past I have critically accepted that rule Auer, which he wrote. Um, so he should not critically usually accept it. Um, but I think I'm increasingly doubtful of its validity and then he goes through and explains why maybe Chevron's all right. Um, but Auer is definitely different because of the bad incentives that it creates, and he ends with a cite to Montesquieu on the spirit of the laws. When he wrote this, this got people's attention, like we don't know what's going to happen with this and the court, but that's an unusual opinion, especially because he was reversing his own, his own view, but he's just writing for himself and you know, they often get opinions for themselves and nothing happens. More happened in this line. He did it again in a case called Decker, and there he dissented. So before it's just a concurrence just saying, here's an idea. Then he dissented again by himself. Um, and he said, wait a minute, um, for decades and for no good reason, we had been giving agencies the authority to say what their rules mean under the harmless sounding banner of deferring to an agency's interpretation of its own regulations, uh, enough is enough. And then he just went, you know, guns blazing against Auer slash Seminole Rock deference, uh, after he passed away, there was, um, you know, Justice Thomas gave this anecdote where he said that once Justice Scalia was harshly critical of an important precedent, just a horrible opinion, one of the worst and Justice Thomas whispered well, Nino, you wrote it, and you can guess which of these opinions it is.You know, it's a fun parlor game. Probably only in law school. They'll go home and play that game. Um, but you say, well, what is it? I don't know this for a fact, but I strongly suspect that that case was Auer, uh, I suspect that was the case. And I say that one because Scalia was so vocal in his criticism of Auer. And also because Justice Thomas took the baton from Scalia and became equally critical of Auer. Um, and recently when the court denied cert before justice score says, joined the court. Justice Thomas dissented from the denial of cert on the question whether they should overrule Auer slash Seminole Rock. And he explicitly adopted the Scalia manning criticism of it. So what does this have to do with Chevron? Well, here are the takeaways for me. Justice Scalia was willing to change his mind. He once quoted Justice Jackson for the idea that I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday. Um, so if he was persuaded, and he could be persuaded, um, Justice Scalia would change, but he wanted a bright line. He wasn't going to jettison Auer for just like a context specific was trying to figure this out like a Mead version of what this is going to look like, that, that is not what he was going to do. He needed a bright line. Manning And gave him a bright line. The bright line was just get rid of this thing and here's why. And he said, okay, that's something I can live with. He cared about the separation of powers. He wasn't getting rid of it because he doesn't like it. Manning's argument wasn't. This is bad policy. Manning's argument was, this is historically, um, contrary to our separation of powers norms. That also sounded with Justice Scalia. He was bold. Once he considered, he was wrong. I love it when you see a professor who will write something and then later will write something opposite and acknowledge that they've changed. Um, if you think that you'd have all the answers the first time you've tried something, you're probably not thinking hard enough. And that was true for Justice Scalia. Justice Scalia is easy. Um, you know, he could have just sat there and not really said anything and it's not like a change anyone's views of Justice Scalia. Um, but he said, no, I, I disagree with my own analysis and he changed. And finally I suspect that the same thing might have happened with Chevron and what, and what do I say that is because the exact same pattern is true. Um, when you had Chevron. Oh, it says initially decided, nobody said when Chevron came out, oh, this changes everything. Well, we completely changed how we go about interpreting how judges review agency interpretations of statutes. That's not the case. This is from the administrative law review. Um, and at first it just seemed like a regular case, it was, you know, tie and kind of talked about things, but it didn't seem that different from what came before. It wasn't like people were dissenting, it wasn't a big hot button issue. So how does Chevron become Chevron? How is it that now Chevron is the most cited of the administrative law, at least deference cases? Uh, well, some of it, a large part of the story of the DC circuit. I'm just like, with Seminole Rock, the DC circuit took this and they said, all right, we're going to start using it. And they started making it a bigger part of how the DC circuit went about its cases. A large part of that is Justice Scalia, then Judge Scalia and Judge Silberman who is a good friend of the justice. Justice Scalia wrote a, another very famous law review article, this is in the Duke Law Journal I'm at where he talked about what Chevron really is about. Um, so the idea of the Chevron, how it became as big as it did, I don't want to overstate it, but in large part it is because of Justice Scalia and some of the others on the DC circuit, um, and Justice Scalia, as with Seminole Rock had a very expansive view of Chevron. Um, so if you read his, opinion in Mead, um, his dissent in Mead is the most expansive, no context limitations on how Chevron works. He didn't win that case, but the analysis is very similar to the sort of analysis in Auer, um, if it's an agency interpreting a statute, we defer. That's the same simple sort of bright line analysis that he wanted and he didn't win. But then that's a case that still bugged him for a long time. He'd always go back to Mead on the court, you know, he thought went the wrong path and ruined what Chevron was supposed to be all about. Um, again, this is Scalia, Justice Scalia, um, on, uh, who is the most vocal proponent of a robust Chevron doctrine. Then fast forward to City of Arlington where he had the majority can and I'm actively defends Chevron against one of the most aggressive dissents in a long time from the Chief Justice, if you want to read an aggressive administrative law dissent, you should read the Chief's dissent in the City of Arlington, but who's the dissenting against? He's ascending against Justice Scalia who again is announcing a very, very, very broad view of what Chevron is supposed to be. Um, some people you can look in the literature, some people say he just went Mead after all. They just kind of smuggled in Mead by City of Arlington. Um, I don't think that's true, but you'll see that in the literature, but the point that the thrust is certainly right, that he had a very broad view of this, which again, I think it was true just as with Seminole Rock. Um, but at the end, towards the end of his time on the court, things started to change a little bit. There was a case called Perez, um, what he wrote separately and he took a shot at Chevron that got a lot of people's attention because Justice Scalia again was the one who was the most vocal in his defense of Chevron and he took a shot at it and he says - he quotes, um, section 706 of the APA that the reviewing courts interpret statutory provisions. Um, and you're like, wait a minute. That's been the argument all along. Justice Scalia, um, what changed? Again, I'm not sure. There was another article. This is forthcoming. It's been a work in progress for a long time by Professor Aditya Bamzai at the University of Virginia. This article is forthcoming in the law journal, which is at historical examination of judicial deference to executive interpretations of the law. Um, I suspect they'll go move. We can never know for sure. I suspect that that article would have done the same thing for Justice Scalia's views on Chevron that Professor Manning's article did for Justice Scalia's views on seminal rock. I think he already started to have misgivings and I think that that would have said, give him the historical basis for him to be confident and say, wait a minute, we have, we have gone off track. We will never know for sure because Justice Scalia passed away, but that is my instinct for where Justice Scalia was. Now we're going to go to part two, we're going to talk a little bit about Gorsuch, and then we're going to wrap it back up. Justice Gorsuch has a different view on this. Uh, Justice Gorsuch, while a circuit court took a very aggressive anti-Chevron view, I don't know if you watched the confirmation hearings, I think Chevron was, um, was, you know, it was, you don't usually see that Hashtag Chevron trending on Twitter, but if it wasn't as almost, you heard Chevron all the time and it's funny to, you know, to listen to folks who, you know, who are not lawyers but are, are, you know, good reporters now trying to explain this thing. And they're like, you see, you hear them testing out the words. Like, is that how this really works? Because it's a very kind of a technical doctrine for someone who's not steeped in administrative law. Well-Judge Gorsuch is, um, and he is very much on the Anti Chevron bandwagon here, maybe leading the bandwagon. Now he's confirmed and you'll see in the media speculation that Auer deference may not be long for this world. Um, there might already be five votes to get rid of Auer. Before Justice Scalia passed away, there were cert petitions filed. Judge Easterbrook had teed it up on a dissent, on a concurrence in denial every hearing and bonk saying this is a perfect case for the Supreme Court to take this. And people thought they would, Justice Scalia passed away, and the court, denied cert, but people are counting noses and, are there five votes to get rid of Seminole Rock? And it probably, I don't know for certain, but there's a good chance that there are, um, just, um, Justice Thomas has openly said this is unconstitutional. Chief, Justice Roberts and Justice Alito have concurred saying that they're open to hearing the argument. Justice Alito has written separately, again, to reiterate that point. And then there's an opinion from 2011, um, Christopher Reeve Smithkline, um, which there was a five Justice majority, um, which took a narrow view of this. Um, so the Supreme Court bar is pretty smart and they're thinking to themselves maybe there's an appetite now to take this. I don't think Justice Gorsuch is going to do anything to dissuade that move when that petition comes, which it surely... Maybe it's even filed now. I'm not sure. But what about Chevron? Um, uh, I'm not so sure. I don't think that there are five votes to overrule Chevron. Again, this is not based on anything inside, just kind of looking at the court, I think, however, if again, go back and read the Chief Justice's dissent in City of Arlington, Chief Justice had three votes for that. He had his vote, he had Justice Alito and had Justice Kennedy. Um, he didn't have anybody else. Since that, Justice Thomas has now concluded before you're going to just give it another presentation, Justice Thomas's evolving views on Chevron. Um, Justice Thomas of course, wrote Brand X, which is a very pro powerful Chevron opinion. Now he says, this is all unconstitutional, so take him from that category and put them in the other category. Um, and Justice Scalia who was on the pro Chevron camp replaced him with Justice Gorsuch, and you've got five votes, um, to at least go back to where the Chief was in City of Arlington, I don't know, I don't know for sure they're going to do that. Um, But the five votes are there. Uh, so I'm going to talk just briefly what that means and just some of my thoughts for what the court should be concerned about, um, before they start overruling some of these cases or, or, or modifying them. Um, so, you know, this is a little self promotion. One of my recent pieces is about what happens if you overrule Seminole Rock. I'm going to share this with you, not because I suspect that this will get back to the Chief Justice or anything, but if any of you end up clerking for the Chief Justice, remember today. Um, we've got to be careful about this. There's a doctrine in administrative law, the Chenery doctrine - Two Chenery doctrines, Chenery two - and Chenery Two says that if you are an agency, you can either make policy by prospective rulemaking or you can make policy by retroactive adjudication, um, and it's up to the discretion of the agency. So an agency can say, imagine the statute says the FCC can regulate the public airways and consistent with the public interest or, or whatever the organic statute says, the FCC could promulgate regulations defining what that term means and saying this is how we interpret, um, public interest or as in January, which was about the SEC, if the agency has abjudicatory powers agency can say we're going to do this on a case by case basis and we're going to announce the policy in adjudication that we then apply retroactively. Um, Chenery Two is very broad. I'm going to spend too long on this. It's very broad. Um, there are some limits on this, you know, at some point that you violate fair notice. Um, but that's pretty far down and it's hard to do that, especially if you're not changing the law, but merely clarifying law, you can see quickly how that's a hard line to draw. Um, so what this means is that if you are an agency, you have to decide how you're going to make policy and you'll say, look, I'm gonna go through the pros and cons of doing this. One of the pros in making policy through rule making is I can do generic resolution of whole bunch of issues. Um, I get more information because there's notice a comment sometimes congress prefers it. Adjudication can be a pain. You have to deal with like an Alj or sometimes. Um, and it's flexible because if you promulgated a regulation, you're going to get Seminole Rock deference when you interpret it. So you don't have to pin yourself down when you, when you promulgate the reg, the pros of adjudication you can do small can just be one little tiny case where you can make a pretty big announcement. It's retroactive, which you don't get with rulemaking. Um, there's no Lyra review. Oh, IRA does not reveal abjudications, rulemaking can be a pain too because you have to go through and get all the notes and calm and all that sort of thing. And it's also flexible because, um, as long as the statute allows it, you can just pick the policy in the adjudication. So what happens if you get rid of Seminole Rock? Um, well rule making suddenly becomes less attractive, right? One of the advantages in the, in the mix of things and why you might choose rulemaking is now no longer in the mix. So if you are an agency official and you're saying, do we want to do rule making or do we want to do adjudication? With Seminole Rock, sometimes at the margins you'll say, well, let's do rule making because um, you know, we don't know how to, how to write this. Exactly. We can make it vague and we can then get deference whether that's in the more aggressive version of the theory. The other might be we don't have to worry so much if we didn't get it figured everything out because if we didn't figure anything out, then we'll still get deference anyway. Um, well if you, if you can't do that anymore for the agency, my concern is that the intended consequences of overruling Seminole Rock is the agencies will promulgate clearer regulations. The unintended consequence might be agencies won't promulgate regulations at all or as many, but instead will make policy through adjudication and agency threats and agency guidances and things of that sort. Um, so there's an empirical question. What are they going to do? I don't know if I have any antitrust or prospective antitrust folks. I was an antitrust lawyer. Uh, I want to know the cross elasticity of demand, but that's the empirical question and the Supreme Court should be thinking about the cross elasticity of demand if otherwise you're going to end up in a world with greater use of Chenery two, which by any measure will be more problematic for regulated parties that even a vague regulation, because by definition, by definition, if a statute, a regulation even in an ambiguous regulation, must be narrower than the statute that it implements because if it's broader than the statute that it implements, then it's ultra virus. So if the statute, so imagine the statute says regulate the airwaves in the public interest and imagined that the regulation says, um, do what, um, you know, consistent with, um, community values, I'm going to just free to do this, making this up. Well, that's at least narrower than, than the public interest, right? Um, even though it's a very vague by definition, it's got to be. It can, it can only be coterminous, it can never be broader and almost certainly is going to be narrower. So if you push agencies away from rulemaking by making it less attractive, we're going to get us more adjudication. Um, now sometimes they might say the other benefits of rulemaking out weigh this and they'll say, and then they'll go to the clear rules. Um, but my worry is again, the crisscross elasticity, are they going to end up here? In which case you should be worried, Chief Justice Roberts. You should be worried because your concerns about unfair retroactivity are only heightened in this context. Um, so what, what does that mean? Here's my, I'm a potential path. I mean all of this one way it cuts in favor of stare decisis. If you don't know who's going to do on net good or bad for the very folks that you're trying to help, um, well maybe you should be careful before you make the change. If you want it to make the change and you want to prevent that substitution away from rule making to adjudication. Here's a couple of thoughts. And, and you got rid of Seminole Rock. Well, you could eliminate Chevron and adjudications. Um, you could say in abjudication, you get Chevron deference only when you promulgated notice it, making perspective regulations that makes rule making more attractive. Um, and in any event, there's a whole bunch of other arguments why you might want to be skeptical of rulemaking, of Chevron abjudications, including the lack of public participation. Likewise, you may want to increase the retroactivity standard, make a little bit harder for agencies to act retroactively now. I don't think either of these require overruling Seminole - Chenery too, but I think that they would prevent some of the substitution if you were to get rid of Seminole Rock. Um, and now I'm going to finish with perhaps a difference between Justices Scalia and Gorsuch on this point. I'm going to wrap it all up together. Um, I think Justice Scalia, if I were to make this sort of, hey, have you thought about something like this? I don't think that would go over very well. Um, because he would say, wait a minute. We should either keep Chevron for all things or get rid of it altogether. But the idea that you get it for rulemaking and not for adjudication, um, I don't think it would be satisfactory to him. Um, I'm not sure it'd be satisfactory to Justice Gorsuch either. Um, but I certainly, um, you know, look at as a dissent in Mead, you know what Scalia thinks about that of thing. Likewise, I don't know what Justice Scalia would think about a world where you increased retroactivity where you say that the courts are gonna be more skeptical of retroactivity because retroactivity. The problem with it is it's always a spectrum. It's not a bright line, oh, that's too much unfairness. That's the right amount of unfairness. That's not unfair at all. It's a continuum and not a bright line. And Justice Scalia and the same reason he didn't like enforcement of non delegation. He doesn't like that sort of thing. I think from Justice Gorsuch's opinions as a circuit court judge, he is more open to retroactivity being heightened. Um, we've seen that particular concern in his analysis. So there we go. That is the story. We've seen Justice Scalia, he changed the Seminole Rock. I think he might've changed with Chevron. The court certainly isn't a place where it looks like it's going to change the Seminole Rock, I don't know what they're going to do with Chevron and if they're going to do it, I hope they do it in a way that considers unintended consequences. And there we go.

Hemel: So I have the problem of responding to responding to Professor Nielsen while pretty much agreeing with everything that Professor Nielson has said. Um, but I'll, um, I'll discuss three broad categories. One due deference doctrines matter, right? So, so why are we so concerned about potentially overruling Chevron and Auer? Two, I want to talk about the contingency of these doctrines and I'll explain a little bit more about what I mean by that when I get to that. And third, uh, I want to talk about the conversation that I think is happening at a subsurface level, uh, when we talked about Chevron and Auer. So first, due deference doctrines matter, um, this is, uh, an extraordinarily difficult thing to figure out empirically. So Chris Walker and Kent Barnett have done great work looking at cases in which courts apply Chevron and in which they don't apply Chevron. And it turns out that agencies win a lot more when the courts apply Chevron, uh, now those of you who clerk on courts of appeals will learn that if you're going to affirm the agency, a really easy way to do that is to rely on Chevron, right or Auer right. So we don't know whether the agency is affirming - the agency is winning because the court is relying on Chevron or the court is relying on Chevron because they want the agency to win. Right? Um, you could also look at agency win rates in cases where we would predict Chevron would apply. So like rule making and cases where we think Chevron won't apply. But the problem there is the agency also knows that. So the agency is probably going to take a more aggressive position where it thinks it's, it will get Chevron deference, uh, versus where it won't. Uh, so, so the, the best evidence I think we have on this comes from right around the time that Chevron was announced, uh, and there's a famous 1990 Duke Law Journal article by Peter Shock, uh, and Donald Elliot a. So they look at the six month period before Chevron. Chevron comes down in June 1984, and then, uh, they pick up the story again in February 1985 where the Supreme Court re-articulate Chevron in a decision called Chemical Manufacturers Association versus NRDC. And you know, it could be a, in a, like an alternative universe, not that many light years away from here. We talk about this as the Chemical Manufacturers Association versus NRDC doctrine rather than as the Chevron doctrine. And I think the PR folks at Chevron are happy that they got this name recognition for so many decades. I'm though now that Chevron is really being dragged through the mud by, uh, Justice Gorsuch, uh, perhaps they wish that it were like the Exxon mobile doctrine. In the six months before a Chevron agencies win a 71 percent rate across the courts of appeals, uh, in the immediate aftermath of chemical manufacturers, they win at an 81 percent. So we see a 10 percentage point delta, and then by 1988, their win rate falls to 76 percent. Uh, so that might be because they're now taking more aggressive interpretations. It might be because the Supreme Court issued a few decisions post Chevron, uh, that gave courts away out of Chevron, right? So what we're talking about years of five to 10 percentage point difference in agency win rates, which isn't nothing but, which isn't massive, right. Now, why does Chevron matter at all? Uh, so, uh, it reduces the marginal cost of affirming the agency, right? So if you are a court of appeals judge, a Chevron and Auer right, it reduces the right, the cost of writing the opinion that affirms it's pretty easy site, Chevron, or you cite Auer and go from there. Second, it reduces the cognitive cost of affirming the agency. Um, so Professor Nielsen and I have written about this case that went through a bunch of names, but, uh, it ends up Safari club International versus Salazar or in re: Endangered Species listing. So it's about whether polar bears are endangered species a and the agency says no. Uh, and, um, ultimately, uh, the DC circuit affirms the agency, takes a few steps and a half step in there. Um, so the DC circuit panel was a Chief Judge Garland. Well, because he wasn't Chief Judge and he was Chief Judge, Judge Garland, Judge Brown, and Judge Edwards. I'm not going to speculate about what was going on in Judge Brown's mine because Professor Nielsen clerked for Judge Brown. So it was going to be able to predict a Judge Brown better. My guess is a little part of a Judge Garland and Judge Edwards died when they had to affirm this decision saying that polar bears weren't an endangered species, right? Like they, they, uh, they experienced some disutility, but they were able to mitigate that by relying on Chevron. Right? So they could go home to their children or their grandchildren and say yeah I went against the polar bear today, but it wasn't really me, it was Chevron. Right? So. So when you don't feel great about the decision, Chevron is useful. And third, if this effect also applies a level up then Chevron and Auer reduce your reversal risk when you side with the agency. So what sorts of cases will this matter? Uh, well, it's not going to matter when you really want to strike down the agency, right? So Massachusetts versus EPA, the Liberals of Justice Kennedy disregard Chevron in order to strike down the Bush administration's climate change policy, right? Hard to do that if you're relying on Chevron, hard to do that. Uh, the realists in the room will say, well, they were going to reach that result regardless. And turned out Chevron didn't really constrain them very much. Right? So when you really don't like what the agency is doing, Chevron doesn't seem to stop you. You can write around Chevron, uh, you can use a sort of the Encino Motorcars out, and say that the agency didn't justify its opinion well enough to get Chevron, uh, Barnhart, this, uh, a Briar case gives you a whole bunch of ways out of Chevron. So you can get out of Chevron when you want to get out of Chevron. Uh, and when you feel really strongly about what the agency is doing in favor of the agency, you also don't want to rely on Chevron. Under those circumstances, you want to make sure that the next administration won't be able to reverse that policy. So you don't want to say that the agency has any, room in the joints here. Um, so that's like King versus Burwell. You see, uh, the Chief Justice, uh, not willing on Chevron. And you see the liberals coming over to the Chief Justice's side in this way, Donald Trump can't change, uh, the Obama administration's policy on ACA Premium tax credits. Okay? So, so Chevron seems to matter in these more marginal cases, right? Court could go either way, Chevron and Auer might tilt the balance towards going with the agency tilt of maybe single digit, low double digit percentage points, but it probably, there probably is an effect on the agencies, uh, agencies are marginally more aggressive, uh, because of Chevron, uh, one, they know that they have a slightly lower risk of being reversed and two, uh, they need a general counsel memo that can argue with a straight face that this is something that they can do right, regardless of reversal risks. There's the straight face check and it's easier for the general counsel to write when Chevron and Auer are in the background. Um, so they're also probably slightly more likely to go through notice and comment because notice and comment increases the probability of getting Chevron. Um, as for Auer, uh, I think the demand for guidance is highly inelastic. First, regulated parties want guidance, right? Regulated parties don't want to violate a, uh, or don't want the agency to take enforcement action against them. And for that same reason, uh, agencies that issue guidance, influence behavior, regardless of whether that guidance is ultimately going to hold up in court, right? Chevron or Exxon Mobile doesn't want to violate agency guidance and then test it out in the court of appeals. And the individuals who issue guidance are not the same individuals who would adjudicate, right? So there's an intra-agency allocation that happens, uh, when the agency issues guidance or when the agency promulgated rules, Auer may give the agency some incentive to be vague and it's regulation so that ex post it can reinterpret the regulation to, uh, achieve its preferences. Though, and I'm pulling from Professor Nielsen's work here, uh, that if in fact could cut the other way, uh, agencies also want their decisions to be sticky, right? So if you're an agency, you know that you want outcome, y you could say x and x is kind of vague. It could be interpreted to be y it could be interpreted to be Z, right? If you're going to promulgate a regulation, you're probably just going to say, why y, get what you want. If you say x, well, now you have some flexibility, right? Uh, and then you could promulgate regulations that says x and then guidance that interprets regulation and says y, but you're worried that, uh, you're the Obama administration, Trump will come in and he's going to use that flexibility in order to achieve that from Z, right? So, so Auer might make you vague so that you have flexibility or it might make you specific so that your successor doesn't have flexibility so that the other people in the agency who might be issuing guidance, uh, don't have flexibility, right? Just as the people who adjudicate aren't the same as the people who issue guidance. The people who issue guidance aren't necessarily the same people who write the regulations and you want regulated parties to be able to rely on, uh, the fact that the policy will be y rather than z. So ultimately, do these doctrines have huge effect on the ground? I think they have a little bit of effect. I don't think it's massive. A second I want to talk about the contingency of these doctrines, right? So these doctrines make life a little bit easier for agencies and they make life a little bit easier, uh, for the White House. And in general, a Democrats want a larger administrative state so they want to make life easier for agencies. Uh, but, uh, during the Reagan administration when Chevron was facilitating deregulation, right? Uh, there were, uh, liberals who didn't like Chevron very much, right? And then in the Obama Administration to stars align, right? Liberals love Chevron because it makes life easier for the administrative state and makes life easier for the Obama administration. And, and now we have this question about what's going to happen. Chevron, yeah, it makes life easier for the administrative state, uh, but it also makes life easier for Trump. Now, I agree with Professor Nielsen that the next four years are probably not going to be four good years for Chevron and Auer, uh, so the fact that it's Trump rather than Obama, uh, in our, uh, I think makes conservatives marginally more likely to support deference doctrines. But my, my sense of the conservative judiciary is they care a lot more about limiting the administrative state than facilitating Trump policies. Uh, they're not entirely on board with Trump policies. Uh, and, and here's an opportunity to narrow the scope of the administrative state, whereas the liberal judges and justices, uh, have a pretty high discount rate. They're really worried about Trump and they're willing to sacrifice some future flexibility for the administrative state if it means stopping Trump. So we might have the stars aligning, whereas we're conservative judges and justices want to use this opportunity in order to roll back the administrative state. And liberals want to do anything they can to roll back Trump. Right? So, uh, so I think this will be a bad four years for Chevron and Auer, I'm not sure of the doctrines will actually be overruled because there are so many ways to limit them that why, why actually overrule them and then have to explain how. Yeah, you say that you care about stare decisis, but you just overruled the most cited case? Uh, that, that seems, that seems like a suboptimal way of achieving what should be a really easy narrowing. I'm so, so, so these doctrines are contingent in their effects. That contingency I think doesn't work well for the doctrines right now. I'm, the justifications are also contingent, right? So the premise of Chevron is that agencies have an accountability advantage and an expertise advantage over courts, right? Uh, and the accountability advantage is a particular type of accountability. It Is accountability as a result of having won more votes. Right? So I am not about to question the legitimacy of Donald Trump as president, right? The type of accountability that he has is not accountability that arises out of having won more votes. Right? It is an accountability, a rock that arises out of the fact that that legitimate political processes have placed them in the position that he is in, right? But legitimate, which intimate political processes have also placed the judges and the position where they are, right? So the electoral accountability justification for Chevron seems weaker in this context than it might have in other contexts and will seem weaker to liberal judges in this context than it has in other contexts, and the notion that the agencies aren't more expert than the judges I think is generally true, but it is not always true. So if you have judges who think who do not think highly of the expertise of the, the, the people with whom the president has staffed agencies, well, then the justifications for Chevron weaken. Um, so, so prediction for the next four years, not going to be good for Chevron and Auer, not sure whether they'll be overruled or just narrowed. Last point is okay. So, uh, uh, administrative law, professors are spending a lot of time talking about Chevron and Auer. People get really revved up about Chevron and Auer, as I probably am getting revved up now. And yet I think we all agree that the effects are at the margins. So why, why is this? I think the question is, is so, so, so Chevron is not the gas of the administrative state, right? Chevron is like, it's really, it should be the Jiffy Lube doctrine, right? It makes the administrative state run more easily, but it's not necessary to power the administrative state. And then the question is, are we really talking about gas here or are we talking about chickens? Right? So are we really talking about cases like Chevron? Chevron is basically a default interpretive rule, cited a lot, uh, but not necessary for the administrative state. We had an administrative state before 1994. We will have an administrative state after Chevron, uh, and um, uh, the, the administrative state doesn't depend upon a 10 percentage point difference in the agency win rate, right? Um, but the administrative state does depend on the non-delegation doctrine. Uh, and I think below the surface in or if you, if you followed the citations in Justice Gorsuch's opinions on Chevron as a, as a, as a circuit judge, you get to Phillip Hamburger's vision, a Columbia law professor, former University of Chicago law Professor, Phillip Hamburger's vision of the administrative state doesn't end with just getting rid of Chevron. And moving to Skidmore deference, right, we're talking about a significant rollback of the power of the executive branch and this sort of headless fourth branch. Um, so, so if this is just a conversation about Chevron and Auer, uh, then, uh, then we should probably reduce the volume and the emotional investment. But I think the contract, there's a great law review article to be written, if it hasn't been written, uh, what we, uh, what we talk about when we talk about deference, right? Uh, and, and I think we are talking about more than just how a court interprets ambiguity or who gets to interpret ambiguity. And then I guess the, the, the. So the question for conservatives is, is this, is this really all about Chevron and Auer or is it about something more? And then the question for liberals is, is this really the measure no line that you want to defend? Right? So, so Chevron maybe, Auer is more, more questionable. The Manning article is a really good article. And is, is this where you want to stake your defense? Like in order to prevent the invaders from getting to like the Paris of the administrative state. Uh, and I think the view on the left right now is yes, we need to save Chevron and Auer because otherwise the administrative state will crumble and I would suggest that, that we can have an administrative state without Chevron and Auer, uh, and, and sort of raising the defense here strikes me as a bit of a puzzle. Uh, so with that, I'll kick it back to Professor Nielsen for some questions. Sure.

Nielson: Really fast. Again, this is not fun. This is supposed to be like, like slugging it out in debates. And I agree with a lot of what Professor Hemel had to say. One thought it's true that the win rate is 10 percent, but there's a dynamic effect. Um, the cases that are not brought are not measured. Um, so if in fact the deference changes, it's more likely that when you say, should we challenge this, but we'll get more cases. So we don't know that there's a, there's a, a, a, a lurking empirical question that we don't know the dynamic effect of this. Um, but, and the other point is that, you know, I'll say I'm a conservative guy, I'm coming from, from the right, I'm a conservative person and I think that for a lot of conservatives, they'll, they'll uphold things on stare decisis even if it didn't matter that much. I don't think, uh, I think that it's just problematic. It was, that's just not what judges are supposed to do. The idea that a judge will read the law and say, I think it means this, but because the executive branch thinks it means something else, I should not follow my independent judgment. I think that just sits wrong. Um, and a lot of, a lot of conservatives, it just doesn't seem how this is supposed to be. Even if it didn't change anything, they just, the idea of it now again, Justice Scalia was by any definition, aI conservative. Um, and he didn't have a problem with it. So I don't want to overstate the claim, nor do I want to say that that's, thus if you have a problem with them, that it must be unconstitutional. That doesn't follow at all. Um, but I think that the subtext, I think that's part of the subject as well as I think that it's concerning to them. They don't think that's the role of how a judge is supposed to behave. Right. And with that was, was that questions.

Host: Thanks so much for that. One question - Do you think there's any chance that Justice Gorsuch is able to change once he gets to Washington and starts to deal with even more technically complex cases or more politically controversial cases that needs dealing with some of the immigration context in Colorado? Yeah,

Nielson: No, that's, that's a very interesting question. So it's interesting you read all of his admin law cases or at least the ones that they talk about, these all come up in the context of immigration or at least most of the big ones. I mean there's a few like land management, but uh, so what does, what does it mean? I mean, he's looking at cases differently than the cases that the docket on the DC circuit, for instance, the DC circuit has no immigration cases. Um, so maybe, maybe that changes. I don't think it does. Um, you know, Justice Gorsuch is not a rube. Um, he's a very sophisticated litigator and you know, you don't spend 10 years at Kellogg Huber and not have a pretty good sense for how, what, what agencies are doing, um, but we'll, uh, it'd be worth seeing but it, because it really will be a different type of cases that he gets and to the extent that he, that he's putting due process, um, his, his due process he's talking about, but individuals, um, and like, you know, you relied on our precedent and now you're going to get deported. Um, yeah, that's, that's a little bit different. Or, or like does this have criminal implications that changes for. Doesn't come up in a manufacturing context. But I suspect there's not gonna be that big of a difference.

Hemel: I call armchair speculated that chair without arms, but it, it may be the case that some, that Justice Gorsuch formed his views on Chevron, uh, uh, to some extent while he was as a, as a judge and where the board of immigration appeals was the agency that he dealt with the most. I think most people would agree that on the rank of agencies, BIA is not doing so well on the (indistinguishable). Whereas actually Scalia, uh, formed his view at the DC circuit where the quality of our agency litigation and the quality of underlying agency documents is a lot higher. Um, so, so maybe that predicts that maybe a reason to think that now their views will, will converge as Justice Gorsuch's agency opinions that are, uh, that are better than the BIA is. But I want to say that quite tentatively because Justice Gorsuch, he knows a lot about administrative law a lot more than I do. And it's not just the board of immigration appeals that he's looked at. Good question.

Host: Someone else? Yes.

Student: What do you think the Trump administration's position isn't going to be in this? Because on one hand they seem to like governing the agency, but on the other hand, they want to destroy administrative state. So do you think there's appetite there to defend Seminole Rock and Auer, or no?

Nielson: I'm going to answer this, the way I think the Professor Hemel would answer it. He would say, wait a minute. The Trump administration is a "they", not an "it". Um, and I suspect that there's a lot of different forces going on and a lot of those kinds of cases. So for instance, if you are a civil appellate, a DOJ, um, your, your task is to win cases, um, and it would take a command from on high to say don't press all available arguments. Um, so I think they'll keep pressing arguments and less, no Attorney General Sessions says not to do it. And Attorney General Sessions' job is to win cases. Um, so I suspect that it would, it would take something big for them to not do it. So I imagine that they're going to continue to litigate the cases the way that they're, the case has been litigated. That said you will get the two for one executive order. And things of that sort to try to try to take this back and maybe you get something out of Congress though. I don't think that some of the laws that are being proposed to be the filibuster. Um, but I think that's, that's where it would be. I, I, it would take a broad declaration from the White House to change the day to day operation at a lot of different places.

Hemel: But, uh, as Professor Nielsen alluded to, there are ways that Chevron and Auer could go that aren't just the Supreme Court court. We could have a law that says we get rid of Chevron and Auer, and such a law has passed the house, with five democratic votes. So what happens in the Senate? Uh, Mitch Mcconnell is, I think, more pro agency than a house member. He is married to the head of an agency. Yes. It's also possible that enough liberals - enough Democrats to get over the filibuster will realize getting rid of Chevron and Auer. It will be really good for the next four years. And we're not looking beyond the next 40 days right now.

Nielson: No, I, I, I, I can't, I shouldn't say this to not 100 percent sure. I think today that they re-proposed the Regulatory Accountability Act and the Senate and I think it was um, Senator Heitkamp and Senator... I think it might be Senator Portman and that would be the law. Again, that's dangerous to opine based on headlines, but that's what it looked like. So there's some bipartisan even there. Um, I don't, I don't see that overcoming the filibuster. Um, but that could just change everything. Um, they could just pass a law. And then we were joking earlier like what do they do if they just get rid of Chevron? Like glad we published already. I'm of like, I don't know how this goes for my tenure file, but I guess I've become a legal historian.

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