February 24, 2020
By Timothy Sandefur
The Supreme Court
this morning announced it would not hear a case challenging a rule that allows
unelected bureaucrats rewrite the decisions of federal courts. You read that
right: Under a legal doctrine called “Brand
X doctrine”—after a Supreme Court case of that name—officials in
federal agencies are allowed to issue “interpretations” that have the effect of
overriding existing legal precedents. This is despite the fact that these
agencies are supposed to be “executive” in nature.
In this particular case, a taxpayer submitted paperwork
to the Internal Revenue Service, and the IRS said it arrived too late. The
taxpayer replied that he’d sent it before the deadline, according to existing
legal precedent. So the IRS simply announced that it now was interpreting its
deadline rule in a new way, and, thanks to the Brand X precedent, that new interpretation overrode the legal
precedent the taxpayer had relied upon.
This Brand X theory is only one of the
several “deference doctrines” courts use when it comes to the powers of
administrative agencies. Probably the most famous—so-called Chevron
deference—requires courts to accept the interpretations
of statutes that administrative agencies create, in all but the most unusual
cases. The result is that agencies are given broad power to determine the scope
of their own authority. If Congress writes a law against, say, “pollutants,”
agencies can decide what that word means, and courts must defer to their
decision. Another kind of deference, called Auer
deference, also allows agencies to write their own interpretations of interpretations, meaning that if the agency
writes a rule interpreting “pollutants,” it can also come up with its own
interpretation of that rule, and
courts must defer to that, as well. (This theory was somewhat narrowed by a recent Supreme Court
decision, but it remains in force.) The Brand
X doctrine goes still another step and allows agencies to rewrite their
interpretations after a court has weighed in, thus effectively overriding the
court’s own opinion.
We filed a brief in the taxpayer’s case,
pointing out that it’s not just federal law that gets overridden, but state law
as well. In a recent Arizona case, the state’s court of appeals held that
certain kinds of insurance contracts were illegal under state law. Then a federal
agency issued a new interpretation of a federal law, which, thanks to Brand X, had the effect of overriding
the state law—and, of course, overriding the state court’s decision, as well.
In today’s
decision, the U.S. Supreme Court declined to reconsider Brand X. But Justice Clarence Thomas—who wrote the original Brand X decision 15 years ago—took the
unusual step of writing a separate opinion in which he admitted he’d made
a mistake. Brand X was a bad
decision, which violates the separation of powers by giving executive agencies
power to override judicial precedent, and giving bureaucrats power to change
the law virtually at will. “Regrettably, Brand
X has taken this Court to the precipice of administrative absolutism,” he
wrote. “Under its rule of deference, agencies are free to invent new
(purported) interpretations of statutes and then require courts to reject their
own prior interpretations…. [This] poignantly
lays bare the flaws of our entire executive-deference jurisprudence.”
The law is slow to
change, but such strong words from one of the Court’s most respected justices
is likely to have a powerful influence on the Court’s thinking in future cases involving
the dangerous powers of the administrative state.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
