Yesterday, the Supreme Court of the United States issued its opinion in Talk America, Inc. v. Michigan Bell Telephone Co. While the opinion, which dealt in part with the Federal Communications Commission’s interpretation of its regulations, is not particularly relevant for Longshore and Harbor Workers’ Compensation Act claims, Justice Scalia’s concurrence is nonetheless interesting. Justice Scalia discusses whether the present rule regarding deference to an agency’s interpretation of a statute is valid. In doing so, the concurring Justice questions the validity of Auer v. Robbins, 519 U.S. 452 (1997), an agency deference case, which is an unanimous decision that Judge Scalia authored. The following is taken directly from the concurrence:
“It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary–indeed, an a fortiori application–of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’ Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949).
“Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretationof its own rules encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappropriateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to do the same ends.
“There are undoubted advantages to Auer deference. It makes the job of a reviewing court much easier, and since it usually produces affirmance of the agency’s view without conflict in the Circuits, it imparts (once the agency has spoken to clarify the regulation) certainty and predictability to the administrative process. The defects of Auer deference, and the alternatives to it, are fully explored in Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). We have not been asked to reconsider Auer in the present case. When we are, I will be receptive to doing so.”
Keep in mind that, in the Longshore context, courts have often, but not always, deferred to the Director’s interpretations. On the other hand, in a pre-Auer case also authored by Justice Scalia, the Supreme Court rebuked the Director’s attempt to expand its statutory power. Director v. Newport News Shipbuilding and Dry Dock Co., 514 U.S. 122 (1995). It will be interesting to see if Justice Scalia’s invitation will be accepted, and whether Auer will be tweaked. If so, the results will have an effect on the deference owed to the Director’s interpretations.
Finally, it must be noted that this is not the Court’s only agency deference decision to come out this year. In January of 2011, the Court decided Chase Bank USA, N.A. v. McCoy, 131 S.Ct. 871 (2011), where it deferred to an agency’s amicus brief. It approvingly discussed Auer in the process.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)