The Rise of Administrative Law

By Nicholas Williams
Nicholas Williams is a freshman in the College of Arts and Sciences at the University of Pennsylvania, planning on majoring in political science.

​Administrative law, the body of law that regulates the actions of administrative government agencies, has become increasingly important. Indeed, the Supreme Court barred the Trump administration from putting a question on the 2020 Census that asked people their citizenship status because the Court found that the Census Bureau gave a pretextual reason for their decision to enstate such a question. This was found to be a violation of the Administrative Procedure Act [1], which governs the formulation and establishment of regulations by federal agencies [2]. This is only one of numerous lawsuits that have been filed against the Trump administration regarding violation of the act [3]. In recent years, numerous Supreme Court cases have been decided that seek to challenge precedent regarding administrative law. In the Court’s 2018 term, two important administrative law cases were decided: Kisor v. Wilkie and Gundy v. United States.

Kisor v. Wilkie involved a case wherein a veteran, James Kisor, was denied disability benefits from the Department of Veterans Affairs in 1982 [4]. In 2006, Kisor appealed the decision, and in light of new information, the VA granted Kisor’s request for disability benefits. However, instead of retroactively applying the benefits Kisor missed from 1982-2006, the department only gave him benefits starting in 2006, as they viewed the new information to not be “relevant” to the original claim in 1982. Under existing federal law, veterans are allowed to collect benefits from the VA if they have a disability. The VA had issued regulations stating that, in order to qualify for retroactive benefits, any new information must be “relevant” to the original claim. Thus, in Kisor’s case, the VA was interpreting a regulation that the agency themselves had made. Kisor thus appealed this decision to the Supreme Court, claiming that the VA should not be able to interpret an ambiguous regulation that applies to itself.

In making this appeal, Kisor was asking the Court to overturn Auer v. Robbins (1997), a Supreme Court decision which held that courts should defer to an agency when interpreting ambiguous regulations that apply to that agency. This doctrine is known as the Auer deference. The Court ended up ruling unanimously against Kisor, with Justice Elena Kagan writing the majority opinion, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and John Roberts. Neil Gorsuch wrote an opinion concurring in the judgement but largely disagreeing with much of the majority opinion’s reasoning, which was joined by Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh. He wrote that while the specifics of the case merited a decision for the VA and against Kisor, the Auer deference should nevertheless be overturned. Neither Gorsuch, Thomas, Alito, or Kavanaugh joined Kagan’s opinion.

In Gundy v. United States, the Supreme Court ruled on the constitutionality of an interpretation of the Sex Offender Registration and Notification Act, passed in 2006 [5]. The law established a national registry for sex offenders, and it explicitly stated that everyone convicted of a sex crime after its passage had to register as a sex offender with the federal government. However, it was unclear as to whether those convicted before passage of the law had to register. Then-Attorney General Alberto Gonzales thus made the decision that the law should apply to those convicted of a sex crime prior to 2006, including Herman Gundy. Thus, a federal agency, in this case the Department of Justice, had taken up the responsibility of interpreting an ambiguous congressional statute.

Gundy challenged the provision under the nondelegation doctrine, which prohibits Congress from delegating too much power to other branches of government. Basically, Gundy believed that he should not have to register because Congress did not explicitly say that he had to register. Thus, the case hinged on whether Congress allocated too much power to the executive branch in allowing the Department of Justice to decide whether those convicted of a sex crime after 2006 should have to register as sex offedners in a national registry.

The Court ended up ruling against Gundy 5-3. A plurality opinion was written by Justice Kagan and joined by Justices Ginsburg, Breyer, and Sotomayor. Because only four justices joined the opinion, rather than the five needed to constitute a majority, Kagan’s opinion did not set a Supreme Court precedent. Justice Alito also ruled against Gundy, but he did not join Kagan’s opinion because he did not agree with its reasoning. He conceded that the Supreme Court needs to review the nondelegation doctrine, but he ruled for the federal government in this specific case. Justices Roberts, Thomas, and Gorsuch, on the other hand, ruled for Gundy, agreeing that allowing the Department of Justice to make such an interpretation of the Sex Offender Registration and Notification Act was a violation of the nondelegation doctrine. Only eight justices took part in the case because it was heard in early October, before Justice Kavanaugh was on the Court. With Kavanaugh on the Court, the Court’s conservative justices could expand the nondelegation doctrine in future cases. This would give federal agencies less power to interpret federal laws.

One may wonder why these cases are so important. Both of them deal with how much power regulatory agencies should have, and in both of them, the Court was just short of a majority that would reign in the power of federal agencies. Federal agencies, from the Food and Drug Administration to the Social Security Administration, have jurisdiction over matters which cover large swaths of daily life. If agencies had less latitude in interpreting laws and regulations, Congress would have to be more explicit when writing laws, spelling out exactly how laws should be implemented. This would take power out of the hands of unelected bureaucrats and give it back to the people’s representatives.

​However, we are living in a time of extreme congressional gridlock. It is hard for Congress to agree on much of anything. Increasingly, new policy comes from regulations and orders issued by the executive branch rather than laws. Looking back on the Supreme Court’s decision surrounding the citizenship question, it is important to note that Congress had neither explicitly authorized nor disallowed such a question from being on the Census, which further illustrates the lack of clarity in congressional lawmaking. In the face of gridlock, should Congress simply be able to transfer their power to the executive branch? It will be up to the courts to decide.

​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] "Department of Commerce v. New York." Oyez. Accessed October 26, 2019. https://www.oyez.org/cases/2018/18-966
[2] “Facts about the Administrative Procedure Act.” Laws.com. Accessed November 1, 2019. https://administrative.laws.com/administrative-procedure-act
[3] Barbash, Fred and Paul, Deanna. “The real reason the Trump administration is constantly losing in court.” Washington Post. March 19, 2019. https://www.washingtonpost.com/world/national-security/the-real-reason-president-trump-is-constantly-losing-in-court/2019/03/19/f5ffb056-33a8-11e9-af5b-b51b7ff322e9_story.html
[4] "Kisor v. Wilkie." Oyez. Accessed October 26, 2019. https://www.oyez.org/cases/2018/18-15
[5] Stern, Mark Joseph. “The Supreme Court’s Conservatives Are Ready to Take a Wrecking Ball to the Entire Federal Bureaucracy.” Slate. June 20, 2019. https://slate.com/news-and-politics/2019/06/neil-gorsuch-supreme-court-conservatives-gundy-sex-offender.html
Photo Credits:
​Velasquez, L. white concrete dome museum. Medium. https://images.unsplash.com/photo-1520525003249-2b9cdda513bc?ixlib=rb-1.2.1&ixid=eyJhcHBfaWQiOjEyMDd9&auto=format&fit=crop&w=2100&q=80