In opinions issued during the last two weeks of the 2018 term, the Supreme Court addressed the hotly debated issues of the flow of power to administrative agencies from Congress, on the one hand, and courts on the other hand. The specific outcomes of those cases—the court’s apparent acquiescence to Auer deference and to broad congressional delegation—may leave practitioners disinclined to press those issues going forward. But a further review and comparison of those decisions in Gundy v. United States, 139 S. Ct. 2116 (2019) and Kisor v. Wilkie, No. 18-15, — S. Ct. —, 2019 WL 2605554 (June 26, 2019) reveals that the non-delegation doctrine was certainly revived, with its fate now squarely in the hands of Justice Brett Kavanaugh, while the Auer doctrine was narrowed or, in the words of Justice Neil Gorsuch, “maimed, enfeebled—in truth zombified,” and five justices still look forward to its “interment.”

These interwoven and layered issues begin with consideration of the extent to which Congress is constitutionally permitted to delegate legislative authority to agencies within the executive branch. At the next analytical level are principles of agency deference, and the extent to which the courts are obligated to defer to the administrative agencies’ interpretation of either statutes or agency regulations. Conservative courts and commentators have bemoaned the broad acceptance of both broad congressional delegation and judicial deference to administrative agencies, and the “unprecedented proliferation of a vast administrative state over the last eight and a half decades.” Carrie Severino, “What Gundy v. United States means to the non-delegation doctrine,” National Review (June 21, 2019); see, e.g., David Schoenbrod, “The Delegation Doctrine: Could the Court Give It Substance?,” 83 Mich. L. Rev. 1223, 1231 (1985); Philip Hamburger, Is Administrative Law Unlawful? p.378 (2014); Gary Lawson, “Delegation and Original Meaning,” 88 Va. L. Rev. 327, 340 (2002); Brett M. Kavanaugh, “Fixing Statutory Interpretation, Judging Statutes,” 129 Harv. L. Rev. 2118 (2016) (book review). Justice Samuel Alito has expressed “concern about the aggrandizement of the power of administrative agencies” while Justice Clarence Thomas bluntly stated that Auer deference disrupts the appropriate balance of power, “ceding the courts’ authority to independently interpret and apply legal texts.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210 (2015) (Alito, J. concurring) (Thomas, J. concurring) (Scalia, J. concurring). Even Justice Antonin Scalia, the author of the Auer decision, harshly criticized the rule and stated that he would “abandon[] Auer” and “restore the balance originally struck by the APA.” Id. at 1213. The addition of Justices Gorsuch and Kavanaugh only served to reenergize the debate and the conservative justices, writing separately and in lengthy opinions by Justice Gorsuch, are unquestionably making substantial headway.

‘Gundy’ and the Non-Delegation Doctrine