Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law

By Bamzai, Aditya | Harvard Law Review, November 2019 | Go to article overview

Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law


Bamzai, Aditya, Harvard Law Review


Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain terms vests "[a]ll legislative Powers herein granted ... in a Congress of the United States" (1) and forces Congress to exercise those "Powers" through an elaborate process of enacting the same legal text in two legislative chambers and presenting the passed bill to the President for approval. (2) But in the modern state, and for quite some time, Congress has delegated authority to write rules and regulations with the status of laws to administrative agencies situated within the executive branch. (3) In turn, those agencies have written rules and regulations affecting the private lives of citizens, and litigants have sometimes challenged in court an agency's authority to promulgate, and to interpret, a rule. Two critical issues that arise out of this arrangement are the limits, if any, on Congress's power to delegate such rulemaking authority to agencies and the interpretive methodology that courts ought to apply when a private party disagrees with the executive branch's interpretation of one of those rules.

This past Term, two cases appeared poised to break substantial new ground on these two issues. Gundy v. United States (4) addressed the question whether the Sex Offender Registration and Notification Act's (5) (SORNA) conferral of authority on the Attorney General to apply its registration requirement retroactively violated the limits that Article I's vesting of "legislative Power" in Congress places on Congress's ability to delegate elsewhere. (6) The Supreme Court has often declared that Congress cannot validly delegate its "legislative Power" to the executive branch, (7) but (save for two exceptions, both of which occurred in 1935 (8)) has not used the nondelegation doctrine to find a statute unconstitutional.

Kisor v. Wilkie (9) addressed the proper interpretive method that courts should use to construe rules promulgated by agencies pursuant to their delegated authority. (10) Since its famous 1984 opinion establishing the doctrine now known as "Chevron (11) deference," the Supreme Court has generally addressed the question of statutory interpretation by asking whether Congress, in the enacted legal text, "directly spoke[] to the precise question at issue" (12)--and if Congress did not, by deferring to an administrative agency's "reasonable" construction in the face of statutory silence or ambiguity. (13) But the seeming simplicity of this two-step test has been destabilized in recent years, as the Court has modified and qualified the parameters of Chevron's applicability. (14) Where Chevron does not apply in statutory interpretation cases, the Court defaults to "Skidmore (15) deference," named after another precedent that parcels out "deference" to administrative agencies based on a multifactor, rather than two-step, approach. (16) Were that not enough complication, the Court has developed, in parallel, an entirely separate doctrine to address the weight that courts must give to agency interpretation of agency regulations, sometimes named "Seminole Rock (17) deference" after a 1945 precedent and sometimes named "Auer (18) deference" after a 1999 elaboration. (19) After Justices in recent opinions began to question Seminole Rock and Auer, (20) the Court in Kisor granted certiorari limited to a single question: whether the doctrine announced in these two cases ought to be abandoned. (21)

In both Gundy and Kisor, the Court fractured, producing plurality opinions that ensure the questions the Court addressed in both cases will remain live ones for years to come. In Gundy, a plurality opinion authored by Justice Kagan and an opinion concurring in the judgment from Justice Alito combined to hold that the relevant provision of SORNA did not violate the nondelegation doctrine. (22) In Kisor, an opinion authored by Justice Kagan that was joined in part by Chief Justice Roberts retained Auer deference, albeit in a circumscribed form. …

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