Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law

Abstract

Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain terms vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States” and forces Congress to exercise those “Powers” through an elaborate process of enacting the same legal text in two legislative chambers and presenting the passed bill to the President for approval. But in the modern state, and for quite some time, Congress has delegated authority to write rules and regulations with the status of laws to administrative agencies situated within the executive branch. In turn, those agencies have written rules and regulations affecting the private lives of citizens, and litigants have sometimes challenged in court an agency’s authority to promulgate, and to interpret, a rule. Two critical issues that arise out of this arrangement are the limits, if any, on Congress’s power to delegate such rulemaking authority to agencies and the interpretive methodology that courts ought to apply when a private party disagrees with the executive branch’s interpretation of one of those rules.

This Comment addresses two cases decided this past Term, Gundy v. United States and Kisor v. Wilkie, that appeared poised to break substantial new ground on these two issues. In both Gundy and Kisor, the Court fractured, producing plurality opinions that ensure the questions the Court addressed in both cases will remain live ones for years to come. Notwithstanding the Gundy and Kisor opinions’ fractured quality, setting the two cases side by side highlights the interrelated nature of administrative law doctrines, as well as the current Court’s understanding of administrative law’s two foundational codes, the Constitution and the Administrative Procedure Act. This Comment seeks to assess whether the Gundy and Kisor opinions get the questions that they address right and what the opinions tell us about the future.

Keywords: Gundy, Kisor, nondelegation, deference, administrative law, Chevron, Seminole Rock, Auer, Skidmore, Administrative Procedure Act, APA