Justice Thomas Uncharitably Characterizes His Own Opinion in Brand X

by Michael C. Dorf

On Wednesday I explained why Justice Thomas is wrong in arguing, as he did in his dissent from denial of certiorari in Baldwin v. United States on Monday, that Chevron deference to administrative agencies is unconstitutional. His argument, I explained, relies on an unnecessarily maximalist understanding of Chevron, seeing that case as mandating judicial abdication of the authority to construe the law in favor of administrative interpretation rather than as simply a presumption of statutory interpretation according to which congressional use of vague or ambiguous language in agency-empowering statutes acts as a delegation of policy-making discretion to agencies.

Today I want to focus on Justice Thomas's further argument (in part II of his Baldwin dissent) that even accepting Chevron, his own majority opinion in the Brand X case should be overruled. He writes: "By requiring courts to overrule their own precedent simply because an agency later adopts a different interpretation of a statute, Brand X likely conflicts with Article III of the Constitution." (The "likely" in that sentence apparently reflects the fact that Justice Thomas is nominally calling only for the re-examination of Brand X, deferring the decision whether to overrule until after argument, but his druthers are nonetheless clear.) With due respect, Justice Thomas is uncharitably characterizing his own opinion in Brand X.

Some federal statutes apply to primary actors directly, without the intervention of an administrative agency. When disputes about their meaning arise in the context of litigation, the courts resolve uncertainty by giving authoritative constructions. Other federal statutes apply to administrative agencies. The agency applies the statute in the first instance and then if litigation ensues the courts defer to reasonable agency understandings of the statute.

Brand X involved yet a third category of statutes: Those that can be the basis for both agency action and actions by parties without prior agency involvement that warrants Chevron deference. Where the agency acts first, the courts follow Chevron. Where litigation reaches a court before there is agency action, the courts construe the statute de novo. Brand X was a case in which extra-agency litigation occurred first and the court said that the statute meant A; then the agency applied the statute to mean B; then a case went to court and the question was whether the court should stick with A or accept the agency's construction of B. Brand X said the court should go with B.

Framed as I have just framed the matter, one can see why Justice Thomas in Baldwin characterizes Brand X as requiring courts to overrule their own precedent due to a different interpretation by an agency. And we can presume that such a requirement would raise issues under Article III and separation of powers. However, the framing in the foregoing paragraph is not necessary and indeed contrary to the framing of the Chevron doctrine (which I expounded in Wednesday's essay) that renders Chevron compatible with separation of powers.

Chevron is best understood (and perfectly constitutional if understood) as a presumption that when Congress employs vague or ambiguous language in agency-empowering statutes it intends to delegate policy-making discretion to agencies to act within the range of reasonable understandings of the language. If one insists that only courts can supply meaning, we can say that the meaning of the statute is the boundary of discretion, not the exercise of discretion itself.

What about Brand X? Can we understand it to render it likewise constitutional? Sure. Consider an analogy.

Suppose that the CEO of a small company plans the annual company picnic. She sends a memo to all employees, instructing them as follows: "Let's gather at noon in Green Park at a spot that Hank, captain of the company softball team, thinks would be a good place for us to play a friendly game of softball after we're done eating." Everyone knows where Green Park is. Employees start arriving at 11:50 am. By 12:15, about twenty employees have arrived and gathered at a spot that looks to them like it would be a good makeshift softball field. Hank arrives a few minutes later. He inspects the ground and notices a few rough patches where a game of softball poses a modest risk of a turned ankle. He finds a better spot about a hundred yards away. Accordingly, everyone happily relocates to the new spot.

In the foregoing example, the CEO is like Congress, Hank is like an agency, and the other employees are like judges. The CEO's memo delegates to Hank the choice of a reasonable picnic spot in light of the planned softball game. Before Hank arrives, the other employees do their best to exercise the kind of discretion that has been vested in Hank, but once Hank has actually exercised that discretion, in light of the CEO's instructions and Hank's greater expertise, the other employees subordinate their own judgment to Hank's. That's how Brand X works too.

To be sure, in Brand X itself, Justice Thomas didn't describe what was going on in exactly that way. Instead, he described the Chevron presumption as constituting the agency as the authoritative interpreter of unclear or ambiguous statutory language. Thus, responding to an argument by Justice Scalia in dissent, Justice Thomas wrote:
Since Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency’s decision to construe that statute differently from a court does not say that the court’s holding was legally wrong. Instead, the agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes.
All of that language is vulnerable to Justice Thomas's attack in Baldwin, but only because in Brand X Justice Thomas described the agency as "reading," "construing," and "interpreting" the statute. Suppose, however, we rewrite the argument in a way that more precisely captures how we would characterize Chevron if sensitive to the notion that legal exposition is ultimately the courts' function, while agencies exercise reasonable policy discretion within the bounds of vague or ambiguous language. We would have something like the following:
Since Chevron teaches that a court’s opinion as to the wise exercise of policy discretion within the bounds of an ambiguous statute an agency is charged with administering is not authoritative, the agency’s decision to exercise the discretion conferred by that statute differently from a court does not say that the court’s holding was legally wrong. Instead, the agency may, consistent with the court’s holding, choose a different policy course, since the agency remains the preferred policy maker (within the limits of reason) under such statutes.
And that makes good sense because of the chaos and uncertainty that would result from overruling Brand X. As Justice Thomas noted in his opinion in that case itself, a "contrary rule . . . would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court’s construction came first, its construction would prevail, whereas if the agency’s came first, the agency’s construction would command Chevron deference."

Finally, I acknowledge that attributing to Congress the intent to delegate policy making discretion to an agency with courts filling in as a temporary substitute prior to the agency's action--as I've done to defend Brand X against the separation-of-powers critique--requires a bit more work to be done by the Brand X presumption than by the Chevron presumption. However, even if the Brand X presumption is inaccurate--that is to say, even if it's wrong to read statutes in Brand X-type situations as similar to the CEO picnic memo--the problem would be a matter of statutory interpretation, not constitutional law. Justice Thomas's constitutional objection to Brand X is as weak as his constitutional objection to Chevron itself.