At today's Senate Judiciary Committee hearing, Sen. John Kennedy (R-LA) questioned Whitney D. Hermandorfer, nominee to be United States Circuit Judge for the Sixth Circuit.
00:00Professor, tell me about the Loper-Brite case.
00:05Sure, so Loper-Brite is the case that overruled the Chevron Doctrine.
00:11And the Chevron Doctrine originally required that if there is an agency statute that governs
00:19an agency's conduct, the agency gets deference, meaning a thumb on the scale, when it's interpreting
00:25what that statute might mean as it's carrying out its duties.
00:30Loper-Brite determined that that framework was inconsistent with the Administrative Procedures
00:34Act and instead that, moving forward, courts should decide all of those statutory interpretation
00:40cases as a de novo matter, meaning the agency doesn't get any sort of special head start.
00:46How much difference did a federal court have to give to an administrative agency under
00:55the Chevron Doctrine?
00:56Sure, so the court would originally make a step one determination about whether the statute
01:02was ambiguous or not.
01:05That's in the eye of the beholder sometimes.
01:07But if the court determined that the statute was ambiguous in the relevant sense, meaning
01:11it didn't resolve the question the agency was facing, it would defer to the agency's view
01:17of the meaning so long as the agency's interpretation was well explained and reasonable.
01:23What's the relationship, if any, between Loper-Brite and West Virginia v. EPA?
01:35So that's a fascinating question.
01:37I think, you know, West Virginia v. EPA applied Chevron but said we're less likely to find ambiguity
01:45and indeed Congress needs to speak clearly if the agency is purporting to resolve a matter
01:51of, in the court's terms, political or social significance.
01:56And following Loper-Brite, of course, there is no deference.
01:59And I think some have commented, including Justice Barrett, that the best way to think
02:03about West Virginia v. EPA in interpreting statutes is that it informs the context of how
02:11we understand what the statutory terms mean in the context of an agency delegation.
02:16So the fact that the agency is purporting to carry out its duties might resolve whether
02:22or not the particular question is sufficiently clearly delegated by Congress.
02:26That just seems to me like a distinction without a difference.
02:30I mean, doesn't Loper-Brite wipe out the need for West Virginia v. EPA?
02:37Why do we still need a major questions doctrine?
02:40So it's certainly true that West Virginia v. EPA, I think, was partially driven by non-delegation
02:47doctrine concerns and concerns about deferring to agencies when doing so threatened our separation
02:56powers.
02:57After Chevron has been overruled, of course, that might be relevant in a smaller number
03:02of cases.
03:04But I do think that the major questions doctrine still has vitality in understanding the best
03:09meaning of the statute, as Loper-Brite now requires.
03:13What's the public rights doctrine?
03:19So most recently, the public rights doctrine has been applied in the Seventh Amendment context
03:25and the Supreme Court has a decision named Jarcusy, where there's a line of precedent saying
03:31that if a matter involves public rights, so the conferral of a public benefit, for example,
03:37that might be the type of matter that Congress can vest adjudication of in an Article I tribunal
03:44or in an administrative agency.
03:46What's a public right?
03:49That's a very difficult question to answer in many cases.
03:51That's why I'm asking you.
03:53Yeah, so I think the best way to think about it is to contrast it with private rights.
03:58And what the Supreme Court has instructed with respect to private rights is that they're
04:02what we would think of as common law type claims.
04:05So contracts, property, torts, the stuff of Westminster in the court's terms.
04:11And so if you have a matter like that, that's the type of matter that needs to go before a
04:16jury to ensure that the Seventh Amendment's jury protections are abided.
04:20By contrast, if there's an internal administrative process, Social Security benefits, things like that,
04:26that looks more like a public right that wouldn't have existed but for the government granting it.
04:30And what did the Supreme Court hold in, was it Jarkosy?
04:38That's right.
04:39What did the Supreme Court hold?
04:40So the Supreme Court there held that certain matters of the Securities and Exchange Commission actually looked more like common law fraud claims and more like property-based claims that must be tried to a jury in court and cannot be vested in the in-house SEC proceedings to be tried before an amendment.
