Does Kisor Really Threaten the Foundations of Administrative Law?

As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations.

Setting aside the arguments for overturning Auer, the purpose of this post is to address a couple recent arguments in favor of retaining Auer. Every day last week, the invaluable SCOTUSblog published a post in a symposium about Kisor. For my part, I was struck by two points repeated by some or all of the proponents of Auer deference.

The first eye-catching claim is that Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Explains Prof. Gillian Metzger:

Central to the attack on Auer are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. Auer critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in Kisor itself. The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions.

And here’s Prof. Adrian Vermeule making this same point:

Petitioners in cases like Kisor typically want to focus not on (formal) adjudication but on interpretation through guidances, which they take to be the best case for their critique of Auer. It is thus extremely awkward for the petitioners in Kisor that, in their own case, the agency interpretation was instituted by means of a relatively formal adjudication, not a guidance. This means that the principle of agency procedural discretion over the choice between rulemaking and adjudication is at maximum force.

I highlighted the identical problem with their argument, which is their mischaracterization of the administrative process by which the agency issued its interpretation in Kisor. Both Metzger and Vermeule claim that the regulatory interpretation at issue in Kisor resulted from a formal adjudication, but that’s an incomplete description. The professors suggest that the regulatory interpretation resulted from a textbook-style adjudication under the Administrative Procedure Act. Under this process, a claims officer rules against the applicant on the basis of a regulatory interpretation; then the parties dispute the interpretation before the administrative tribunal; and, finally, the tribunal would resolve the interpretation in a final order.

Were this what actually happened in the Kisor controversy, then the professors would have a valid point. But that’s not what happened. Instead, the Department of Veterans Affairs issued its regulatory interpretation completely unprompted (not after an adversarial process). To be sure, the agency could have issued its regulatory interpretation when it last amended its rules, in 2006. But the agency chose to leave the regulation vague. And because the agency’s subsequent interpretation escaped any procedural safeguard whatsoever from the regulatory agency, Kisor is, in fact, an excellent vehicle for reexamining Auer.

The second striking commonality among Auer proponents at SCOTUSblog is their excessive speculation. Specifically, each scholar voiced the alarming possibility that overturning Auer would rock the foundations of administrative law. Per Vermeule, “overruling Auer would cause ramifying, unpredictable consequences throughout the structure of administrative law.” Metzger echoes the same point: “The radical import of these attacks is not limited to overturning Auer, but would call into question the core legal foundations of the administrative state.” For that matter, here’s Brianne Gorod, chief counsel at the Constitutional Accountability Center (with whom Cato joins on briefs in other areas of law), writing that “these attacks on Auer are part of a broader attack on the administrative state.”

Call for Proposals: 2019 Junior Scholars Symposium

American foreign policy sits at a crossroads. The War on Terror continues, but is increasingly unpopular, while the rise of Donald Trump has reignited debates over America’s role in the world. Policy-relevant academic research on key questions of international security and national security policy is more important than ever.

The Cato Institute will be hosting a paper workshop for graduate students on topics broadly related to international security and national security policy in Washington, D.C. in late October 2019. Topics may include a wide range of security issues, including but not limited to U.S. foreign policy, the causes and consequences of conflict, military effectiveness, grand strategy, civil-military relations, alliances and security institutions, terrorism, military intervention, diplomatic history, arms control and nuclear proliferation.

Participants will be expected to produce an original paper of journal-article length; the workshop will focus on paper presentations, discussion and suggestions for improvement, with the expectation that authors will go on to seek publication in external journals or to build upon this research as they move towards the dissertation phase of their studies.

Participants are particularly expected to highlight the policy relevance of their work. In keeping with the Cato Institute’s commitment  to moving U.S. foreign policy towards prudence and restraint, the policy implications of papers should be broadly compatible with a pragmatic realist approach to foreign policy.

The workshop will be held at Cato’s offices in Washington, D.C. Participants will receive a stipend of $500, and will have reasonable travel and accommodation costs for the workshop covered.

To apply, submit an abstract of around 500 words to juniorscholars [at] by no later than April 1, 2019. The abstract should detail your proposed research project, and be accompanied by a CV. Candidates should have a background in political science, history, public policy or a related field, and must have completed at least one year of graduate study in a PhD program by the time of the workshop. All candidates will be notified of the status of their application by May 6th, and draft papers will be due on October 7th.

Courts Must Reassert Control Over Administrative Agencies

Those who hold the reins of political power will not always be benevolent, self-restrained public servants—and the procedural safeguards that seem frustrating and counterproductive in one instance may very well be necessary bulwarks in another. Those safeguards are undermined by the Supreme Court’s requirement that courts give deference to a regulatory agency’s interpretation of its own rules. Under this principle, most recently enunciated in Auer v. Robbins (1997), agencies can change their minds on how to enforce the law without so much as giving the public notice.

Consider James Kisor, a Vietnam veteran whose claim for disability benefits hinged on the interpretation of the term “relevant” in the Board of Veterans Appeals rules of procedure. The Department of Veterans Affairs last amended its rules in a more formal notice-and-comment proceeding in the mid-2000s. During such a process, agencies seek input from the public on proposed rules. During that rulemaking, the VA could have defined evidentiary “relevance,” but it declined to do so. Only when the board denied Kisor’s full claim—eight years later—did the agency announce its interpretation unprompted and without having been briefed on the matter. Obviously, Kisor was given no advance notice of the new “rule”—which was really just a new semantic wrinkle—much less the opportunity to participate in the formulation of regulations that ultimately would curtail his rights.

Mr. Kisor appealed the denial of his claim to the Veterans Court, which sided with the government. He then sought review in the U.S. Court of Appeals for the Federal Circuit, which again sided with the government. The three-judge panel determined that the term “relevant” was ambiguous, and that both parties had advanced reasonable interpretations, but applying Auer deference, the agency wins.

In December 2018, the Supreme Court agreed to hear this case, specifically on the question of whether to overrule Auer and presumably go back to granting deference to agency interpretations only to the extent they’re well-reasoned an based on special expertise. Cato, joined by Professors Jonathan Adler, Richard Epstein, and Michael McConnell, as well as the Cause of Action Institute, has filed an amicus brief supporting the overruling of Auer. We argue that the judiciary should no longer blindly accept self-serving agency interpretations. Instead, judges should make their own independent determinations of regulatory meaning based on a searching and reasoned reading of the regulations at issue.

We argue that Auer, by concentrating lawmaking and law-interpretation in regulatory agencies, both offends separation of powers principles and facilitates procedural shortcuts. It deprives regulated entities of fair notice, which is fundamental to the integrity of the law, and also robs administrative policymaking of legitimacy by allowing agencies to avoid public participation in the formulation of their rules. Finally, despite some predictions that overturning Auer will wreak havoc in administrative agencies, we point out that independent judicial assessment will only change the outcome in a small minority of cases.

Overturning Auer is an important step towards reining in the administrative state, so Kisor v. Wilkie may end up being the most important case of the term. The Supreme Court will hear argument on March 27, with a decision expected at the end of June.

Top Spenders in the 115th Congress

In a recent post, we observed that five Representatives and two Senators voted to reduce spending during the 115th Congress. We also noted that democratic socialist Senator Bernie Sanders voted to spend less than half as much as conservative Senator Marco Rubio.

While Senators Sanders and Rubio voted to spend over $140 billion and $330 billion respectively, they were far from the worst offenders. The fact that Rubio was the seventh-lowest spending Senator and the fourth-lowest spending Republican Senator, despite voting to spend over $330 billion, is a testament to the lack of fiscal restraint from both parties.

On the other end of the spectrum, eleven Senators and six Representatives tied for the title of top spender by voting for more than $1.9 trillion in new spending during the 115th Congress. These members included twelve Democrats, four Republicans, and one Independent. Top spenders in both the House and the Senate were consistently Democratic, although top-spending Representatives were somewhat more likely to be Republican.

With the national debt at nearly $22 trillion and growing rapidly, annual spending increases of nearly $2 trillion are not wise or sustainable. We urge members in both parties to emphasize fiscal responsibility during the 116th Congress.

William Van Alstyne, R.I.P.

One of the nation’s foremost constitutional scholars, Professor William Van Alstyne, died on January 29. In his later years he was a friend of Cato’s Center for Constitutional Studies. In fact, in 2010, at the conclusion of the Center’s annual Constitution Day Symposium, he delivered our ninth annual B. Kenneth Simon Lecture in Constitutional Thought. 

A graduate of the University of Southern California and the Stanford Law School, Professor Van Alstyne spent most of his distinguished career as a chaired professor at the Duke Law School, after which he served from 2004 to 2012 as the Lee Professor of Law at the College of William and Mary Law School. His scholarship, covering a vast array of legal subjects, is voluminous, his honors numerous. His First Amendment casebook sits on my shelf. His seminal 1994 article, “The Second Amendment and the Personal Right to Arms,” underpinned the long march to District of Columbia v. Heller, in which Cato played so prominent a part. 

I first heard Professor Van Alstyne address that subject in the late ’70s, at an Association of American Law Schools convention, of all places. He was not reluctant to stand against the tide. Years later, in June of 2008, shortly before Heller was decided, he demonstrated that spirit again in a way personal to me. The Legal Times had run a piece of mine criticizing a decision the Supreme Court had just handed down in a case called Engquist v. Oregon Department of Agriculture. I thought the opinion, written by Chief Justice Roberts for himself, the Court’s four other conservatives, and Justice Breyer, had fundamentally misread the Fourteenth Amendment’s Equal Protection Clause in this anomalousclass-of-one” case. Having thus staked out so contrarian a view, you can imagine my surprise and delight when I received a very nice note from Professor Van Alstyne, whom I had never before met, explaining why I was exactly right! 

That spirit was evident again in Professor Van Alstyne’s 2010 Simon Lecture, which he titled “Clashing Visions of a ‘Living’ Constitution: Of Opportunists and Obligationists.” In that lecture he took on a number of the nation’s most prominent legal academics, from both Left and Right, to show how the Constitution has been systematically misread over the years. He will be missed. May he rest in peace.

Latest Numbers From Massachusetts Provide More Evidence That Prohibition Is The True Killer

The Massachusetts Department of Public Health reported today on the opioid-related overdose rate in the commonwealth for 2017. The good news is the overdose death rate decreased by 8 percent from 2016 to 2017. 

But a closer look at the numbers reveals that overdoses from prescription opioids were found in around 20 percent of “opioid deaths with specific drugs present.” (See figure 4, page 3 of the report.)

A startling 83 percent had fentanyl present in their drug screens, 43 percent had heroin, and 41 percent had cocaine. The report stated that the fentanyl was “most likely illicitly produced and sold, not prescription fentanyl.”

The 20 percent of deaths in which prescription opioids were found in the screen does not break things down any further, but judging by the estimated 68 percent of opioid-related deaths that feature multiple drugs on board (such as benzodiazepines, fentanyl, heroin, cocaine, methamphetamines, alcohol), we can safely assume that the overdose rate due exclusively to prescription painkillers is significantly lower than 20 percent.

Meanwhile, policymakers stay fixated on pressuring doctors to prescribe fewer and lower doses of opioids for their patients in pain, and state attorneys general set their sights on suing opioid manufacturers, completely ignoring the fact that the overdose crisis has primarily been about nonmedical users accessing drugs in the dangerous black market. Prohibition is the real killer.

Response to Barry Latzer’s Criticism of “Criminal Immigrants in Texas”

Barry Latzer, Professor Emeritus of Criminal Justice at the John Jay College of Criminal Justice, wrote a criticism of Cato’s brief on the homicide conviction rate for illegal immigrants in Texas.  My research brief found that the illegal immigrant homicide conviction rate in Texas in 2015 was 2.6 per 100,000 illegal immigrants, which is below the 3.1 per 100,000 rate for native-born Americans, but higher than the 1 per 100,000 rate for legal immigrants.  Professor Latzer mischaracterized my findings and made some other errors that I will discuss below.  His points are in quotes and my responses follow:

“Critics of illegal immigration argue that the crime rates of illegal aliens are higher than those of the American population generally, or at least of legal immigrants.  The New York Times has denied that illegals commit more crime than other groups, but the paper bases its claim on a Cato Institute study that relies on questionable data [emphasis added].”

Latzer linked to a New York Times piece that says that illegal immigrants have lower conviction and arrest rates “than those for native-born Americans for most crimes.”  The New York Times piece did not use Cato’s research to claim that other groups like legal immigrants have a lower criminal conviction or arrest rates.  The January 15, 2019 front page of the New York Times presented Cato’s findings in a graph that clearly showed that the legal immigrant criminal conviction rate was below that for illegal immigrants and that both rates were below those of native-born Americans. 

Latzer also claimed that I “relied on questionable data” to calculate the Texas illegal immigrant conviction rates.  That’s a very odd thing to write as Latzer relied on the exact same source as I did: the Texas Department of Public Safety (DPS).  I wrote in footnote six of my brief that I would make the data available to anybody who asked and then provided my email address.     

The data that DPS sent me break down the annual number of homicide convictions by the immigration status of the offender for each year.  The Texas DPS website does not provide the number of annualized homicide convictions for illegal immigrants.  Latzer appears, although I’m not entirely sure, to have worked backward from numbers provided on the Texas DPS website to create an annual average of the number of homicide convictions over many years, which is much less precise as the number of homicides does fluctuate annually as does the number of illegal immigrants in a state.  The latter number is also critical to estimating the homicide conviction rate.  It is especially important to use the accurate annual number of homicides as the nationwide homicide rate per 100,000 American residents rose from a low of 4.5 in 2014 to a high of 5.4 in 2016.

At this point, it is important to explain how I calculated the criminal conviction rates for illegal immigrants, native-born Americans, and legal immigrants.  I took the number of criminal convictions for each group (the numerator) and divided them by the population of each group (the denominator).  I then multiplied the result by 100,000 to display the number of criminal convictions per 100,000 for each sub-population – which is standard when discussing crime rates.  Both the numerator and the denominator are vital to calculating an accurate criminal conviction or crime rate.

According to the Texas DPS data, there were 785 total homicide convictions in Texas in 2015. Of those, native-born Americans were convicted of 709 homicides, illegal immigrants were convicted of 46 homicides, and legal immigrants were convicted of 30 homicides.  After we published our brief, the Texas DPS reported that Texas prisons found 63 additional illegal immigrants over the June 1, 2011 to December 31, 2018 period who were convicted of homicide but not counted as illegal immigrants. 

The Texas Department of Criminal Justice (TDCJ) recently sent me the number of incarcerated individuals by legal status, but they appear to count only immigrants with an ICE hold, which also includes immigrants who were legally present in the United States at the time of their arrest but who then lost their legal status when they convicted, as illegal immigrants.  This is an important difference as the Texas DPS counts the immigration status of the offender at the time of arrest, not after conviction when the offender could potentially lose his lawful immigration status as a result of his conviction.  Thus, the TDCJ counts more illegal immigrants in prison because they are including criminals who were legal immigrants at the time of their arrest and who lost their lawful status after they were convicted due to their conviction.  As a result, the additional homicides committed by illegal immigrants from TDCJ that Texas DPS counts that Latzer mentions were legally present in the United States when they committed their crimes.  Foreign-born people who are lawfully present in the United States, but who are not naturalized, mostly lose their lawful immigration status and become eligible for deportation upon conviction.  It makes no sense to include those folks who are convicted of crimes in any measurement of illegal immigrant criminality because they were legal immigrants when they committed their crimes

Let me make an analogy to show why the TDCJ numbers shouldn’t count toward illegal immigrant criminality based on their count.  If a police officer is arrested for a criminal offense and then convicted for that offense and incarcerated, he loses his job when he is convicted (if not before).  But since he was still a police officer when he was arrested, we must still count his crime as one committed by a police officer.