My last post explained one of the reasons Kisor doesn't make sense. I'll have more to say about that later. This post hits another topic list of Kisor Rants.

You probably aren't surprised to see Kisor and Chevron appearing together in the title of a post on this blog. After all, both cases deal with judicial deference to agency interpretations of legal texts, so it makes sense to discuss them together, right? Federal courts sure seem to think so.  Cases decided in Kisor's wake are already applying Kisor in the Chevron context and vice versa. See, e.g., E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 939 (N.D. Cal.), order reinstated, 391 F. Supp. 3d 974 (N.D. Cal. 2019). But why would I mention 90s punk rock band, "The Offspring," in the same breath with those adlaw landmarks? As the rest of this post explains--and as every 90s kid has no doubt already predicted--because when it comes to Kisor and Chevron, "you gotta keep 'em separated."

Two  of the concurring opinions in Kisor made that very point--namely those of the Chief Justice and Justice Kavanaugh (joined by Justice Alito). As the Chief Justice put it:

Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). I do not regard the Court’s decision today to touch upon the latter question.

This raises two questions. First, if you had walked the hallowed halls of 1 First Street the day the Chief and Justice Kavanaugh drafted their separate opinions, would you have heard the grating vocals and surf-thrash riffs of "Come and Out Play" emanating from Chambers? Second, exactly how are the issues distinct? I take a stab at the second question below.

What follows is a quick discussion of just some of the ways Kisor and Chevron differ. These are just the ones I thought of off the top of my head, and I'm sure I'm missing many--perhaps even some very important ones. Can you spot any? If so, please let me know in the comments.

  1. Both doctrines are based on the presumption that ambiguity in the legal text at issue signals Congress's intent to delegate primary authority to resolve the ambiguity to the agency rather than the court. Because Congress writes statutes, it controls or is responsible for the ambiguities they contain. There is therefore some intuitive basis for the presumption in the Chevron context (though I think it's still questionable). In the Auer/Kisor context, though, it doesn't make sense. Congress doesn't write regulations; agencies do. Thus, the presence of an ambiguity in a regulation says nothing about Congress's intent. If anything, it says something about the intent of the agency.  Put differently, Congress controls or at least can control how courts will evaluate the signals of its own intent in the  Chevron context, but Kisor permits agencies to control the Court's view of Congress's intent.
  2. The theoretical basis for the two doctrines differs. Although both doctrines rest on the Court's view that agencies are more politically accountable and more capable subject-matter experts than courts, but see King v. Burwell (discussed below), Kisor also assumes that the agency that wrote the ambiguous rule is in the best position to say what it means. Chevron does not mention that last justification. Why? The most obvious reason is that the principle that "a law's makers are its law expositors" simply doesn't apply to Chevron because Chevron keeps the law maker (Congress) and the law expositor (the agency) separate. Kisor, by contrast puts the power to make, interpret, and execute the laws into the same hands--those of the agency. I can't move to the next point without emphasizing that while the Supreme Court may believe it's a great idea to rely on a law's author to tell us what it means, Blackstone didn't. 1 William Blackstone, Commentaries *58. Nor did the Framers. The Federalist No. 81, at 483 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Nor does the Supreme Court in most contexts. See, e.g., Mistretta v. United States, 488 U.S. 361, 371-74 (1989); Morrison v. Olson, 487 U.S. 654, 680-81 (1988); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 847-57 (1986). Moving right along ....
  3. At least since King v. Burwell, 135 S. Ct. 2480 (2015) (and probably earlier), Chevron has not applied to questions of extraordinary political or economic importance. If Congress wanted to delegate such important questions to agencies (instead of courts), the Court explained, "it surely would [do] so expressly." Id. at 2489. The Court has never applied that restriction in the Kisor/Auer context.
  4. In the Chevron context, the Court won't defer without first asking (1) whether Congress gave the agency the power to interpret the statute with the force and effect of law and (2) whether the agency interpretation at issue was itself the exercise of that power. Mead. Kisor purported to adopt a "similar" though not "identical" framework for Auer deference, but it never explained the distinction between the two standards. So what are the relevant differences?  While I'm sure these aren't the only ones, the most obvious differences to me are that (1) the agency doesn't need to speak with the force and effect of law when interpreting a regulation to receive Kisor deference, and (2) Mead describes this "Step Zero" analysis as a threshold inquiry necessary to determine whether Chevron applies at all, whereas Kisor appears to instruct courts to apply its analogous framework after the Court has exhausted the traditional tools of construction and determined the regulation at issue is genuinely ambiguous. There's much more to say here.
  5. Chevron requires courts to exhaust the "traditional tools of statutory construction" before declaring a statute ambiguous; Kisor instructs courts to exhaust the "traditional tools of construction." While courts disagree over what constitutes the full list of "traditional tools of statutory construction," we do at least know what the relevant alternatives are. As far as I know, no one has ever even attempted to list all the traditional tools of construction. Who knows what those are.  
  6. Mead tells us that when the Step Zero inquiry reveals that Chevron doesn't apply, courts apply Skidmore instead.  Kisor similarly explains that "when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the 'power to persuade.'" (quoting Skidmore). But it isn't exactly clear what a Skidmore analysis would look like in the Kisor context. By the time a court figures out that "the reasons for th[e] presumption do not apply, or countervailing reasons outweigh them," under the Kisor framework, it may have already done quite an exhaustive analysis, including (a) rigorous application of all traditional tools of construction, (b) some sort of reasonableness analysis, (c) an inspection of the interpretation's authoritativeness, (d) determining whether the interpretation is expertise-based, (e) assessing whether the interpretation is the result of the agency's fair and considered judgment, etc. Having journeyed that far to determine that deference is inappropriate, it's hard to imagine that there would be much left to consider under Skidmore. If there is anything, the Court doesn't say what it is.
  7. Some say that Chevron Step Two is interchangeable with arbitrary-and-capricious review. If the same is true of some "step" of the Kisor framework, it is not obvious which one it is.

I'll stop here, though now that I've started this list, I realize there is a whole lot more to say. Comments welcome.

Kisor, Chevron, and The Offspring (Kisor Rant 2)
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