Journal Issue Date: Nov/Dec 2020
Journal Name: Vol. 56 No. 9
On a daily basis, thousands of Tennessee attorneys interact with the State and its numerous regulatory departments. From TDOT regulations to child support guidelines to the Department of Agriculture’s 21 different rules concerning eggs,1 Tennessee’s administrative agencies are pervasive and, much like their federal counterparts, “pok[e] into every nook and cranny of daily life.”2 It is all but certain that if you practice law in Tennessee, you will have an agency involved in some of your cases.
Yet when these agencies wind up on the other side of the “v.,” attorneys face an uphill battle from the first pleading. This is because Tennessee courts practice Chevron deference, a rule of statutory interpretation first promulgated by the United States Supreme Court in the seminal case Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council3 and adopted in Tennessee in Jackson Express, Inc. v. Tenn. Pub. Serv. Comm’n.4 Under Chevron, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”5 The Supreme Court would take this a step further thirteen years later in Auer v. Robbins and extend this deference to agency construction of their own regulations.6 Both doctrines—essentially letting an unelected body issue rules with the force of law7 and act as its own court in interpreting those rules and their authorizing statutes—have been met with severe criticism and attempts to undo the Court’s decision for years.8 Justice Scalia would later hone in particularly on Auer as bad law:
[W]hen 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. . . . [D]eferring to an agency’s interpretation of its own rule 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.9
There is also a prevalent idea that Chevron and its progeny lead to systemic bias against parties challenging agencies; if a court must defer to an agency’s “reasonable” (not even necessarily correct or superior) interpretation of a law or its own regulations, and the agency is a party before the court, how can the other party ever get a fair shake? And how can one say that the other party is actually being afforded due process of law?10 Moreover, when a court defers to an agency’s interpretation of a law or its own regulations, how are they exercising their own independent judgment, as Article III of the Constitution and its state corollaries require them to do?11
Administrative deference currently hangs on as valid legal precedent—though its grip is growing increasingly tenuous. In 2019, the Supreme Court issued its opinion in Kisor v. Wilkie, which declined to overrule Auer but noted the doctrine was “cabined in its scope.”12 The Court only drew a majority, however—the four more liberal Justices plus Chief Justice John Roberts—in choosing to uphold Auer deference solely on the basis of stare decisis.13 The majority prompted a lengthy opinion concurring in the judgment authored by Justice Neil Gorsuch. Not only was Auer a complete misreading of a reviewing court’s duties under the Administrative Procedure Act, said Justice Gorsuch, but the decision was entirely incompatible with the Constitution.14 Furthermore, he contended that public policy considerations and the very rationale behind stare decisis—that precedent should be maintained only if it has not proven unworkable and stayed consistent with related developments in the law15—both counseled against keeping Auer.16 While recognizing that Auer remained good law after the Court’s decision and would need to be revisited, Justice Gorsuch noted that “this cloud may have a silver lining: The majority leaves Auer so riddled with holes that, when all is said and done, courts may find that it does not constrain their independent judgment any more than Skidmore [v. Swift Co.],” which only gives agency interpretation “power to persuade, if lacking power to control.”17
As Justice Gorsuch accurately observed, both Chevron and Auer are also constitutionally suspect, in that they represent an impermissible delegation of power to the executive branch. The Constitution’s text both supports this conclusion and promotes internal consistency between the branches of government; its very first section provides that “[a]ll legislative Powers . . . shall be vested in a Congress of the United States.”18 If they are vested in Congress, it follows that they are not vested in anyone else, and Congress may not flout the Constitution’s express language and delegate them to anyone else. Indeed, “[i]f the grant were merely permissive, not exclusive, there would be no reason for the word All.”19 The same is true for the judicial branch, as “the judicial power” is vested only in “one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”20 As the Supreme Court has noted in other cases touching upon separation of powers issues, “[a]bdication of responsibility is not part of the constitutional design.”21 By allowing administrative agencies to enact binding rules with a strong presumption of validity, courts implicitly authorize an “evasion of the Constitution’s pathways for law” and “eva[sion of] many of the Constitution’s procedures.”22 Moreover, this allows for denial of citizens’ constitutional rights “to be subject to only such federal legislation as is enacted by an elected Congress.”24 Tennessee’s constitution is even more forceful on this front, as Article II, section 2 expressly provides that “[n]o person or persons belonging to one [branch of government] shall exercise any of the powers properly belonging to either of the others.”
When the national system proves slow or unwilling to act, state courts have traditionally served as playgrounds for experimentation under their own constitutions.24 The United States Constitution only imposes the minimum personal protections that are required; there is no prohibition against a state reading its own constitutional protections more broadly than those afforded under federal law.25 In fact, state constitutions often have language that is much more detailed and descriptive than that in the federal version.26 Indeed, the Bill of Rights was predicated on already existing state constitutions.27 History is also replete with examples of the Supreme Court consulting state court precedents as justification for its holdings.28
State courts have recently begun responding to these arguments and getting rid of their deference doctrines. For example, Wisconsin recently decided “to end [their] practice of deferring to administrative agencies on conclusions of law”; the Wisconsin legislature would codify this holding six months later.29 Mississippi has recently done the same.30 Arizona has bypassed the courts altogether and enacted a statute that explicitly requires a court to make its determination, “including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency.”31 Florida’s voters eliminated Chevron by amending their constitution in a 2018 referendum.32 Furthermore, several other state courts have recently produced concurring or dissenting opinions discussing the need to abandon their deference practices.33
All of these decisions have come about based on the constitutional arguments discussed above, none of which were raised in Chevron or Auer.34 For example, the Wisconsin Supreme Court noted that
[c]eding judicial power to an administrative agency is, from a separation of powers perspective, unacceptably problematic; it is problematic along a different axis when that agency appears in our courts as a party. The non-agency party may reasonably ask whether our deference doctrine will deprive [them] of an impartial decisionmaker’s exercise of independent judgment, and, thereby, the due process of law.35
Furthermore, the Tetra Tech court would specifically note that “[Wisconsin’s version of] deference, like Chevron deference, is an institutionally declared and thus systematic precommitment in favor of the government.”36 The Mississippi Supreme Court made similar observations, holding that “[d]eferential review of executive-branch statutory interpretations gives rise to . . . problem[s] under Mississippi’s strict constitutional separation of powers.”37 Furthermore, this deference “share[ed] the exercise of the power of statutory interpretation with another branch in violation” of the Mississippi Constitution.38 In choosing to act through the legislature, Arizona passed a bill that was “intended to say ‘you can’t give absolute deference. You’re the court; you need to make a decision.’”39 And members of Florida’s Constitutional Review Commission, who proposed the amendment, noted that “[w]hen one party writes the rules and enforces the rules and then decides the litigant [challenging the agency] has improperly followed the rules, the concept of due process is impossible. . . . Nowhere else in our system of justice does someone come into court with an automatic advantage.”40
If the constitutional concerns of keeping administrative deference in place and the growing wave of state rejections of the doctrine are not enough to convince Tennessee attorneys to challenge that notion in court, recent actions from the legislature should further encourage making these arguments. The General Assembly recently passed a joint resolution “urging state and federal courts to refrain from giving judicial deference to state agencies in their interpretation of statutes and administrative rules,” thereby explicitly signaling an endorsement of future judicial invalidation of administrative deference.41 Legislative comments during the resolution’s discussion only underscore the point: “[f]or too many years, our  courts have been deferring to unelected, unaccountable bureaucrats. . . . I truly believe that the courts will follow our advice and overturn the Chevron decision”42; “at some time, we hope the Supreme Court will . . . take that up again and reverse the Chevron decision.”43 And the promulgation of both Chevron and Auer indicate that arguing in court is the way to get them overturned; these doctrines are both “judge made,” which supports the notion that “[a]ny change should come from th[e] [c]ourt, not [the legislature].”44
All this is to say that the ball is now (literally) in Tennessee’s court(s). “[T]here will never be a healthy discourse . . . about the meaning of core guarantees in our American constitutions if the state judges” are not “marshaling the distinct state texts and histories and drawing their own conclusions from them.”45 As attorneys, it is up to us to bring these arguments before trial and appellate courts in the first place. Furthermore, attorneys should bring these arguments under color of both the state and federal constitutions. State courts will generally be more responsive to passing upon the distinct, often more expansive language of their own constitutions, and “[w]hile two sets of protections may fail us from time to time, . . . one set of independent protections assuredly will fail us more often than two.”46 In addition to the constitutional issues inherent in deferring to what exists as a de facto fourth branch of government, Tennessee attorneys now have a growing chorus of states backing up their claims and the outright endorsement of the legislature. The time is now ripe to make these arguments and make the case for a more principled approach to statutory interpretation, a check on the administrative branch’s expansive overreach, and greater fidelity to our constitutionally established system of government.
DUNCAN M. BRYANT serves as judicial law clerk to the Honorable Holly Kirby of the Tennessee Supreme Court. Before that he worked at the law firm of Hodges, Doughty & Carson in Knoxville. Bryant is a recent alumnus of the University of Tennessee College of Law, where he graduated in May 2020 as its salutatorian. He is originally from Athens, Tennessee, and is the son of the Honorable Jerri S. Bryant, Chancellor for Tennessee’s 10th Judicial District, and D. Mitchell Bryant, a solo practitioner in McMinn County.
1. See Tenn. Comp. R. & Regs. 0080-05-04-.01, et seq.
2. City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting).
3. 467 U.S. 837 (1984).
4. 679 S.W.2d 942 (Tenn. 1984).
5.467 U.S. at 844.
6. 519 U.S. 452, at 462–63 (1997). Auer deference is also sometimes referred to as Seminole Rock deference, after Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). As such, references to “Seminole Rock deference,” including those in this essay, concern the same principles as Auer deference. See also Exxon Corp. v. Metro. Gov’t of Nashville & Davidson Cty., 72 S.W.3d 638, 641 (Tenn. 2002).
7. See Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (“It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the force and effect of law.”).
8. See, e.g., Separation of Powers Restoration Act, H.R. 4768, 114th Cong. § 2 (2016); Garco Constr., Inc. v. Speer, 138 S. Ct. 1052, 1052–53 (2018) (Thomas, J., dissenting) (internal cites and quotations omitted) (“Seminole Rock deference is constitutionally suspect. It transfers the judge’s exercise of interpretive judgment to the agency, which is not properly constituted to exercise the judicial power. It also undermines the judicial check on the political branches by ceding the courts’ authority to independently interpret and apply legal texts.”); Jeffrey A. Pojanowski, “Revisiting Seminole Rock,” 16 Geo. J. L. & Pub. Pol’y 87, 97 (2018); Stephen M. DeGenaro, Note, “Why Should We Care About an Agency’s Special Insight?,” 89 Notre Dame L. Rev. 909, 918–19 (2013); Jack M. Beerman, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Conn. L. Rev. 779, 782 (2010); John F. Manning, “Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules,” 96 Colum. L. Rev. 612, 680–81 (1996).
9. Talk Am. Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68–69 (2011) (Scalia, J., concurring); see also Justice Clarence Thomas, “A Tribute to Justice Antonin Scalia,” 126 Yale L.J. 1600, 1603 (2017) (recalling a conversation where Justice Scalia called Auer “one of the Court’s ‘worst decisions ever’”).
10. See generally Philip Hamburger, “Chevron Bias,” 84 Geo. Wash. L. Rev. 1187, 1211–13 (2016) (discussing this issue as a serious constitutional problem).
11. Id. at 1206–09.
12. 139 S. Ct. 2400, 2408 (2019).
13. See id. at 2424 (Roberts, C.J., concurring in part) (“For the reasons the Court discusses in Part III–B, I agree that overruling those precedents is not warranted.”); id. at 2425 (Gorsuch, J., concurring in the judgment) (“[T]oday’s decision is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis.”).14. See id. at 2432–41 (Gorsuch, J., concurring in the judgment).
15. See, e.g., Pearson v. Callahan, 555 U.S. 223, 233–34 (2009); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Payne v. Tennessee, 501 U.S. 808, 827–28 (1991).
16. Kisor, 139 S. Ct. at 2441–48 (Gorsuch, J., concurring in the judgment).
17. Id. at 2448 (Gorsuch, J., concurring in the judgment); Skidmore v. Swift Co., 323 U.S. 134, 140 (1944); see also Gonzales v. Oregon, 546 U.S. 243, 269 (2006) (“[U]nder Skidmore, we follow an agency’s rule only to the extent it is persuasive.”).
18. U.S. Const. art. I, § 1; see also Tenn. Const. art. II, § 3.
19. Philip Hamburger, The Administrative Threat 24 (2017) (emphasis in original).
20. U.S. Const. art. III, § 1; see also Tenn. Const. art. VI, § 1.
21. Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).
22. Hamburger, supra note 19, at 4.
23. Id. at 22.
24. For an excellent discussion of both the historical role and present wisdom of having state courts supplement the scope of individual liberties, see Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).
25. Stewart G. Pollock, “State Constitutions as Separate Sources of Fundamental Rights,” 35 Rutgers L. Rev. 707, 718 (1983); see also Right to Choose v. Byrne, 450 A.2d 925, 931 (N.J. 1982) (opinion of Pollock, J.) (“Although the state Constitution may encompass a smaller universe than the federal Constitution, our constellation of rights may be more complete.”).
26. Texas’s provision on freedom of religion offers a particularly salient example:
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.Texas Constitution art. I, § 6.
27. See Sutton, supra note 24, at 8; William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977).
28. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2597, 2600, 2605, 2607 (2015); Heller v. Dist. of Columbia, 554 U.S. 570, 580 n.6, 583 n.7, 584–85, 590 n.13, 591, 600–04, 612–14, 629 (2008); Bowers v. Hardwick, 539 U.S. 558, 570–71, 576 (2003); Mapp v. Ohio, 367 U.S. 643, 651 (1961).
29. Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 914 N.W.2d 21, 63 (Wis. 2018); see Wis. Stat. § 227.57(11) (2018).
30. King v. Miss. Military Dep’t, 245 So. 3d 404, 408 (Miss. 2018).
31. Act of Apr. 11, 2018, ch. 180, 2018 Ariz. Sess. Laws 977 (2018) (codified at Ariz. Rev. Stat. Ann. § 12-190).
32. Fla. Const. art. V, § 21; Mark Chenoweth, “Florida Voters Join Chevron Revolt and Strike a Blow Against Judicial Bias,” Forbes (Nov. 8, 2018, 8:44 a.m.), https://www.forbes.com/sites/markche noweth/2018/11/08/florida-voters-join-chevron-revolt-and-strike-a-blow-against-judicial-bias/#59752e8b4fe6.
33. See Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 624 (Ind. 2019) (Slaughter, J., dissenting); Solomon v. State, 364 P.3d 536, 551–52 (Kan. 2015) (Stegall, J., concurring); Md. Dep’t of the Env’t v. Cty. Commr’s, 214 A.3d 61, 128 (Md. 2019) (Getty, J., dissenting); Kind Heart Daycare, Inc. v. Comm’r of Human Servs., 905 N.W.2d 1, 14 (Minn. 2017) (Anderson, J., concurring in part and dissenting in part); Prokop v. Lower Loup Nat. Res. Dist., 921 N.W.2d 375, 399 (Neb. 2019) (Papik, J., concurring);sState ex rel. McCann v. Delaware Cty. Bd. of Elections, 118 N.E.3d 224, 231 (Ohio 2018) (DeWine, J., concurring in the judgment) (per curiam); Harmson v. Unemployment Comp. Bd. of Review, 207 A.3d 292, 308 (Pa. 2019) (Donohue, J., concurring). While concurrences and dissents do not make law, they often serve as persuasive authority for judges and justices who later revisit and reshape the law at issue. See, e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2097 (2018) (citing Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124, 1135 (2015) (Kennedy, J., concurring)); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 351 (2010) (citing Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 680 (1990) (Scalia, J., dissenting)).
34. Cf. Brief for Petitioners, Auer v. Robbins, 519 U.S. 452 (1997) (No. 95-897), 1996 WL 491446; Brief for the Adm’r of the Envtl. Prot. Agency, Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984) (No. 82-1005), https://www.justice.gov/sites/default/files/osg/briefs/1983/01/01/sg830187.txt.
35. Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 914 N.W.2d 21, 48 (Wis. 2018).
36. Id. at 49 (citing Hamburger, supra note 19, at 1211).
37. King v. Miss. Military Dep’t, 245 So. 3d 404, 407 (Miss. 2018).
38. Id. at 408 (citing Miss. Const. art. 1, § 2). The court also “f[ound] persuasive the reasoning of then-Judge Gorsuch in Gutierrez-Brizuela v. Lynch, [834 F.3d 1142 (10th Cir. 2016) (Gorsuch, J., concurring)].” Id.
39. Hearing on H.B. 2238 Before the S. Judiciary Comm., 53rd Leg., 2d Reg. Sess. (Ariz. Mar. 1, 2018), at 1:06:30 (statement of Rep. Farnsworth).
40. “Proposal Takes Aim at the Chevron Doctrine,” The Fla. Bar (Apr. 15, 2018), https://www.floridabar.org/the-florida-bar-news/proposal-takes-aim-at-the-chevron-doctrine/.
41. H.R.J. Res. 140, 111th Gen. Assemb., 1st Sess. (Tenn. 2019).
42. Senate Session, Debate on H.R.J. Res. 140, 111th Gen. Assemb., 1st Sess., at 27:35 (May 2, 2019) (statement of Sen. Kelsey).
43. Hearing on H.R.J. Res. 140 Before the S. Judiciary Comm., 111th Gen. Assemb., 1st Sess., (Tenn. May 1, 2019), at 17:00 (statement of Sen. Bell, Member, S. Judiciary Comm.).
44. See Pearson v. Callahan, 555 U.S. 223, 233–34 (2009); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“Nor is it entirely clear that Congress could overturn the Auer doctrine legislatively. The majority describes Auer as a ‘presumption’ about how courts should interpret statutes granting rulemaking power to agencies. Congress can, of course, rebut the presumption on a statute-by-statute basis, or even for all past statutes. But can Congress eliminate the Auer presumption for future statutes?”) (emphasis in original).
45. Sutton, supra note 24, at 177.
46. Id. at 170.
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