Presidential Power

On Monday we will begin our two-part class session on judicial review of agency action.  In particular, we will examine how courts review agency decisions when the agency has reversed a previous policy position.  In two of the cases -- State Farm and Mass v. EPA -- the change in the agency's position coincided directly with a change in Presidential Administration. In all of the cases some members of the Court acknowledge the role of politics in agency decision-making, though they disagree as to whether that should change the judicial review calculus.  You can access the case materials in the "Files" or by following the links below. 

(1) Motor Vehicles Manufacturers Association v. State Farm, 463 U.S. 29 (1983), link to full case in Google Scholar

(2) Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), Google Scholar link, Legal Information Institute link

You only need to read parts I, II, V, VI, and VII of the opinion. We will not be discussing the standing analysis). 

(3) FCC v.  Fox Television Stations, Inc., 556 U.S. 502 (2009), Google Scholar link, HeinOnline link (PDF of official version) (UW restricted).

(4) 5 U.S.C. section 706 (the judicial review section of the Administrative Procedure Act)

On Friday, January 27 (Class #6), we will finish our two-day study of judicial review of agency action.

First, we will continue our exploration of Chevron deference and arbitrary and capricious review. We will do this by reading Encino Motorcars, a 2016 decision from the U.S. Supreme Court that explores how courts might decline to defer where an agency changes its views and fails to take reliance interests into account. We also will explore the future of Chevron deference by discussing Title II (Sections 201 and 202) of H.R. 5, which recently passed the House. If passed into law, Title II of H.R. 5, also known as the Separation of Powers Restoration Act, arguably would eliminate Chevron deference.

Second, we will explore Auer deference, which involves judicial deference to an agency’s interpretations of its own regulations. As you will see from the assigned materials, Auer deference is currently at play in a case pending before the U.S. Supreme Court involving an opinion letter issued by the Obama administration on transgender rights. 

Third, we will learn about the Supreme Court’s 1985 decision in Heckler v. Chaney, which stands for the proposition that agency non-enforcement decisions are generally unreviewable by the courts.  In other words, Heckler tells us that there is a rebuttable presumption against judicial review of non-enforcement policies, such as executive branch policies speaking to the non-enforcement of immigration laws and federal drug laws.

The specific reading assignments for class on Friday, January 27, are as follows: 

Encino Motorcars, LLC v. Navarro, No. 15-415, 579 U.S. ___, 136 S.Ct. 2117 (June 20, 2016), link to Supreme Court website

• Please read all of the majority’s opinion and also all of Justice Ginsburg’s concurrence. You do not need to read Justice Thomas’s dissent.  In reading this case, please pay attention to the interplay between Chevron and arbitrary and capricious review, and please also pay attention to how the agency’s failure to adequately consider industry reliance interests impacted the deference analysis.

Regulatory Accountability Act of 2017, H.R. 5, 115th Cong., link to Congress.gov.

• Read Title II, known as the Separation of Powers Restoration Act. Please consider what would happen to Chevron deference if Title II were to become law.
• Note that Congress.gov allows you to follow a bill's progress through Congress. H.R. 5 passed the House on Jan. 11, by a vote of 238 to 183. On Jan. 12 it was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs.

Christopher v. Smithkline Beecham Corp., 567 U.S. ___, 132 S.Ct. 2156 (2012), link to Supreme Court website.

• Please read all of the majority’s opinion. You do not need to read the dissent by Justice Breyer. 
• This case will expose you to Auer deference and to how Auer deference may be inapplicable when an agency’s change in position would result in unfair surprise to those who are regulated. 

Jeannie Suk Gersen, Gavin Grimm’s Transgender-Rights Case and the Problem with Informal Executive Action, The New Yorker, Dec. 6, 2016.

• Please read this short article. 

Heckler v. Chaney, 470 U.S. 821 (1985), Google Scholar link, HeinOnline link (PDF of official version) (UW restricted)

• Please read all of the majority’s decision. You do not need to read the concurring opinions.
• This case sets up a general presumption of non-reviewability for non-enforcement decisions.

Connor Raso, Congress may tell courts to ignore regulatory agencies’ reasoning, but will it matter?, Brookings, Jan. 27, 2017.

William N. Eskridge Jr. & Connor Raso, Chevron as a Canon, not a Precedent: An Empirical Test of what Motivates Judges in Agency Deference Cases, 110 Colum. L. Rev. 1727 (2010).