The petitioners in Gloucester County School Board v. G.G. asked the Supreme Court to review three questions.
1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?
2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
3. With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?
Last week, the Court granted the petition, limited to Questions 2 and 3. As soon as I saw that order, I had a premonition–really a flashback–to the Chief Justice’s opinion in King v. Burwell. You may recall that virtually every judge who ruled for the government in the tax subsidies litigation did so on the basis of Chevron deference: they found that the phrase “established by the state” was ambiguous, and the IRS Rule interpreting that phrase was “reasonable.” Only one judge–Andre Davis of the Fourth Circuit held that “established by the state” unambiguously provided that subsidies could be provided on the federal exchange. That was, until Chief Justice Roberts.
During oral arguments, Roberts asked only two questions, one of which was about Chevron:
If you’re right — if you’re right about Chevron, that would indicate that a subsequent administration could change that interpretation?
At the time, I thought Roberts was suggesting that indeed the next President could rescind the IRS rule by adopting a different “reasonable interpretation.” However, in hindsight (as I discuss in Unraveled), Roberts had a different meaning altogether: Chevron was irrelevant, and the next President could not unravel Obamacare, because the statute unambiguously permitted subsidies on the federal exchange.
Roberts, in what has become his typical fashion, found a way to rule for the government while pairing back doctrines he does not like. In NFIB, he upheld the mandate and Medicaid expansion, but only by putting further constraints on commerce and spending clause doctrines. In King, he affirmed the payment of subsidies on the federal exchange, but only by expanding the scope of the “major question” doctrine, which I view as part of Chevron Step 0. This has become his modus operandi.
That brings us back to Gloucester County. The fact that the Court expressly rejected the first question means that Auer deference is not going anywhere. So how will Roberts vote here? If NFIB and King are any guide, my prediction: Roberts will hold that that the “Dear Colleague” letter is not entitled to Auer deference (question 2), but even without deference, the Department’s interpretation of Title IX is correct (question 3). That is, discrimination on the basis of “sex” unequivocally prohibits discrimination on the basis of gender identity.
Then again, I’m almost always wrong with my predictions, so feel free to disregard this post.