Revisiting Judicial Deference

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The luncheon panel was titled "Revisiting Judicial Deference." The Department of Justice position taken in Kisor v. Wilke seems to acknowledge that Auer deference is in jeopardy and is a marked difference in tone from how DOJ has continued to strongly defend executive authority in its arguments and briefing in the lower appellate courts. Historically, two key defenses in this area have been the now-controversial deference doctrines of Chevron (requiring courts to defer to executive agency interpretations of ambiguous statutes they administer) and Auer/Seminole Rock (requiring courts to defer to executive agency interpretations of their own regulations). Is the administration making a strategic retreat in an attempt to protect those doctrines from a Court where a majority of its members have signaled an openness to revisiting them? Or does this reflect a commitment to the judicial use of traditional tools of textual interpretation to overcome ambiguity, reining in agency autonomy, and discouraging congressional delegations of lawmaking authority to agencies? Furthermore, with cert pending in United Parcel Service, Inc. v. Postal Regulatory Commission, thirteen states in amicus arguments see a new opportunity to reconsider Chevron. As Chevron and Auer/ Seminole Rock form significant parts of the superstructure of the modern administrative state, what does this mean for the future of the constitutional balance? * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers. Featuring: Dr. John Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute Mr. Roman Martinez, Partner, Latham & Watkins LLP Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University Moderator: Ms. Sarah M. Harris, Partner, Williams & Connolly Introduction: Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society