When the Supreme Court reconsiders Auer v. Robbins
, 519 U.S. 452 (1997), as it decided last month to do, the Justices should draw upon the Court’s early case law for a Constitutionally-sound replacement for “Auer
deference.” Since the earliest days of our Republic, the Court has construed ambiguities in federal statutes affecting individuals contra proferentem
, “against the law makers.” As Justice Paterson wrote in a case involving a customs duty collector’s contract in 1806, "words of a statute, if dubious, ought . . . to be taken most strongly against the law makers." United States v. Heth
, 7 U.S. (3 Cranch) 399, 413 (1806).
The 1789 Preamble to our Bill of Rights also suggests that its final article should be utilized to “avoid misconstructions”:
THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions and abuses of its powers, that further declaratory and restrictive clauses should be added: . . . .
On December 10, 2018, the Supreme Court granted certiorari to review the following issue raised by James Kisor, a veteran of the U.S. Marine Corps seeking disability benefits for his service-related post-traumatic stress disorder (PTSD): “Whether the Court should overrule Auer and [Bowles v.] Seminole Rock [& Sand Co., 325 U.S. 410 (1945)].”
In his Petition for Certiorari, Kisor wrote that these two cases “direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation,” but that “Auer deference is incompatible with due process,” and “provides agencies an end-run around the notice-and comment procedures required by the Administrative Procedure Act (APA), allowing agencies to skirt this fundamental legal constraint.” Kisor also argued, quoting Justice Clarence Thomas, that Auer “results in an ‘accumulation of governmental powers’ by allowing the same agency that promulgated a regulation to ‘change the meaning’ of that regulation ‘at [its] discretion’.”
Many experts consider Auer in the same skeptical light as Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). For example, in a September 2018 Heritage Foundation article, “Not Above the Law: Ending the Misguided Chevron–Auer Deference Regime,” Joseph Postell and Paul Larkin wrote, “Chevron–Auer deference raises major constitutional concerns, is inconsistent with the Administrative Procedure Act, and has little basis in American legal history.”
Likewise, Columbia University Law Professor Philip Hamburger, in his 2014 book, “Is Administrative Law Unlawful?,” cited Auer when he wrote: “The Supreme Court notoriously explained ‘the principle of deference to administrative interpretations’ in Chevron.”
Although James Kisor is a veteran, his case is not simply about “a well-established rule of statutory construction that when a statute is ambiguous, ‘interpretive doubt is to be resolved in the veteran’s favor’.” Terry v. Principi 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citation omitted). Kisor’s administrative ordeal, as summarized in his reply brief to the Supreme Court in support of certiorari, is not unique to veterans and presents a broader opportunity to fix the administrative state run amuck, what James Kisor describes as “a fundamental defect of Auer”:
The agency promulgated a vague regulation using APA notice-and-comment rulemaking; then, without notice-and-comment, the agency changed the regulation’s meaning; and, finally, the agency defended its action via reliance on Auer deference. This Court should revisit Auer to foreclose this circumvention of the APA.
In this light, the Supreme Court should consider replacing Auer deference with a Constitutionally-sound rule of construction based on the final of 12 original articles in the Bill of Rights. That final article was enacted as the 10th Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A rule of construction for federal government ambiguities based on the Bill of Rights would be fully consistent with the 1789 Preamble of the Bill of Rights, in which our Founders explained the purpose of the Bill of Rights: “to prevent misconstructions and abuses of its powers.”
Based on its 1992 decision in New York v. United States, 505 U.S. 144 (1992), the Supreme Court’s 10th Amendment-based rule of construction would resolve any statutory ambiguity in accordance with this guiding principle: "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people." 505 U.S. at 157 (internal citation omitted).
Such a 10th Amendment-based rule of construction would, over time, result in Congress enacting less ambiguous legislation under Article I of the U.S. Constitution, Section 1 of which provides that, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
“We the People,” including but not limited to our veterans, deserve no less.
Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.
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