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  • Brian Walsh

Barrett's Administrative Law Opinions Should Be Given Due Deference

The prospect of a new Supreme Court justice brings a renewed focus on many of the Court's controversial doctrines. While much of the speculation on Judge Amy Coney Barrett’s nomination has focused on social issues such as abortion, she could be a critical vote in the Court’s future on Chevron deference. Chevron deference— named for the 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council — holds that courts should defer to an agency's interpretation of a statute when its language does not clearly answer the question at issue, provided the agency interpretation is reasonable. This has often allowed agencies to turn statutory ambiguity into a justification for expanding the scope of their authority. This authority now allows agencies to promulgate, enforce, and adjudicate rules in one all-encompassing unelected branch of government.

Judge Barrett has not decided as many cases involving Chevron deference as Justice Kavanaugh had when he was an appeals court judge. This is due to the jurisdictional differences between the Seventh and D.C. Circuits. Even so, her Chevron analysis was on display in Cook County, Illinois v. Wolf. She agreed with the majority that under Chevron step one, the statutory term "public charge" did not solely refer to one who is primarily and permanently dependent on government assistance. Yet Judge Barrett disagreed with the majority that DHS's interpretation of the "public charge" provision was unreasonable under Chevron's step two. She applies an excellent textual analysis dissecting the plaintiff’s argument explaining the “public charge” definition offered by the plaintiffs flouts the statute. This was another example of her faithful commitment to textualist analysis. As she ruled for the agency, her view of Chevron may depend on the statutory text and the agency’s interpretation than any deference or hostility to the agency as stereotypically alleged.

Judge Barrett joined the majority opinion in Orchard Hill Building Co. v. United States Army Corps of Engineers. The Army Corps of Engineers had declared a real estate developer’s parcel of land as a wetland that constituted “waters of the United States.” That said, the challenged parcel was eleven miles away from a navigable river. Judge Barrett joined the majority opinion that relied on the Supreme Court precedent of Rapanos v. United States, which established the legal test for determining when wetlands are waters of the United States. The Army Corps of Engineers had interpreted Rapanos in promulgating guidance to help decide if challenged wetlands had a significant nexus to navigable water. The Army Corps of Engineers claimed agency deference for this guidance. The Seventh Circuit ruled that this situation's deference was not based on "reasonable grounds" and held that the Army Corps of Engineers did not provide “sufficient evidence” of a significant nexus with a navigable river. In each opinion, Judge Barrett’s follows the text of the law and is willing to find deference as appropriate when warranted by factual evidence. Like her mentor, Justice Scalia, she is an originalist, not a nut.

During Day 2 of her Confirmation hearing, both Senators Ernst and Crapo asked Judge Barrett about administrative law. Senator Ernst asked her about how agencies should interpret laws passed by Congress. Judge Barrett responded with the Chevron two-step analysis that when a court reviews whether an agency has exceeded its lawful authority, it goes to the statute that Congress enacts and interprets that statute, looks at the text, and tries to tell whether Congress given the agency leeway to adopt policies. And that leeway would be present if you had ambiguity in the statute that left the decision to the agency. She was careful to caveat that if the agency goes further than the text of the statute permits, then it is the court's role to say that that action conflicted with the statute and therefore illegal. She continued the conversation with Senator Crapo to expand on how ambiguity in statutes is treated under Chevron as a delegation to the agency to fill in the details. When asked to give her opinion on the Chevron doctrine, she correctly followed the Model Code of Judicial Conduct, which prohibits judges from answering questions that could imply a bias in future cases.

Judge Barrett has shown judicial restraint and adherence to precedent as a Seventh Circuit judge. Yet she will not rubber-stamp agency decisions and will scrutinize the underlying factual evidence. This is because it is emphatically the province and duty of the judicial department to say what the law is in our constitutional system of checks and balances. As Justices Gorsuch and Kavanaugh have each questioned administrative deference, Judge Barrett's addition will have interesting implications on the future of administrative law.


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