In my article Presidential Maladministration, forthcoming in the Illinois Law Review, I discuss the concept of the “presidential reversal”: that is, the executive branch changes its position, merely because a new President is elected with new priorities. Such changes should give the courts pause before applying the normal cannons of deference.
Recently, the Solicitor General’s official switched sides in a pending case, NLRB v. Murphy Oil. In September 2016, the Obama administration petitioned for a writ of certiorari in a case involving arbitration agreements. Certiorari was granted in January 2017. Last week, the Solicitor General officially switched sides, filing an amicus brief in support of the petitioners in two of the dockets. The government was remarkably candid in explaining why it reversed its prior position: the “change in administration.”
In Murphy Oil, this Office previously filed a petition for a writ of certiorari on behalf of the NLRB, defend- ing the Board’s view that agreements of the sort at issue here are unenforceable. After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion. Although the Board’s interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer to the Board’s conclusion as to the interplay between the NLRA and other federal statutes. We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.
Why was the SG so blunt here? As I discuss in my paper, the Obama administration was on several occasions rebuked during oral arguments after switching positions from that of the Bush administration “upon further reflection.”
Justice Scalia hd fun with SG Verrilli in Kiobel v. Royal Dutch Petroleum, but the Chief was not amused.
Justice Scalia, once again interrupted the Solicitor General. “It was the responsibility of your predecessors as well, and they took a different position. So why should we defer to the views of the current administration?” With a dash of humor, Verrilli answered, “because we think they are persuasive, Your Honor.” Over laughter, Scalia answered, “Oh, okay.” Chief Justice Roberts was not persuaded. Reaffirming Scalia’s position, Roberts warned, “whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.” Ultimately, agreeing with the government’s new position, the Court determined that “Attorney General Bradford’s opinion defies a definitive reading and we need not adopt one here.” However, no deference was granted to the reversal.
The Chief’s anger boiled over during US Airways v. McCutchen.
During oral arguments [in US Airways, Inc. v. McCutchen], Chief Justice Roberts criticized Deputy Solicitor General Joseph R. Palmore about this reversal. “The position that the United States is advancing today,” Roberts said, “is different from the position that the United States previously advanced.” The Chief, with a tinge of annoyance in his voice said “further reflection” was “not the reason” why the position change. He added for emphasis, “it wasn’t further reflection.” Roberts, who had served in the Reagan and Bush administrations decades ago, asked rhetorically whether the real reason was that “we have a new secretary now under a new administration, right?” Palmore attempted to answer, “We do have a new secretary under a new administration,” but Roberts interrupted him. “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change.”
Kiobel, Levin, and McCutchen, each raising the same issue, were argued during a span of four months. Sensing a disquieting trend, Chief Justice Roberts sent a message of sorts to the Obama administration: “We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.” Palmore responded that since the earlier brief was filed, the “law has changed.” The Chief Justice replied, “Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the [new] secretary is now of the view. I found that a little disingenuous.” The Chief openly rebuked the Solicitor General’s office for using this malapropism to justify maladministration. Supreme Court advocate Roy Englert Jr., who worked in the Solicitor General’s office, observed that Chief Justice Roberts was “making a broader point” with his criticism, referring to the recent string of cases where the Obama administration had reversed prior positions.
I suspect this candor is directly attributable to the Chief’s reprimand five years ago.
As I discuss in my paper, such reversals should give the courts pause before affording the new position the traditional deference it would otherwise be due.
The first species of presidential maladministration is by far the most commonplace: when the incumbent administration abandons a previous administration’s interpretation of a statute. Every four-to-eight years, to comply with the new President’s regulatory philosophy, political appointees in agencies alter certain interpretations of the law—often with direction from the top. These changes are not always implemented through the formal notice-and-comment process, but rather can be manifested through informal opinion letters, guidance documents, and even legal briefs. Regardless of their form, these presidential reversals are the ultimate, and clearest forms of commander-in-chief nudging to the administrative state.
There is nothing nefarious when a new administration disagrees with a previous administration. Indeed, it is quite natural that presidents see things differently. The only question that remains is how should courts treat this reversal. Outside of Chevron’s framework, the Supreme Court has maintained that presidential reversals are “entitled to considerably less deference.” In recent years, the Roberts Court—led by the Chief Justice himself—has faulted the Solicitor General’s abandonment of earlier positions “upon further reflection.” However, within the cozy confines of “Chevron’s domain,” old interpretations of ambiguous statutes are not chiseled in stone, so “sharp break[s] with prior interpretations” do not weaken deference. Both blends of reversals are policy decisions all the way down, and should give courts pause that the newly-minted interpretation is any more reasonable than the abandoned on.
Or, the Court could DIG the case.