CREDIT: AP PHOTO/MICHAEL DWYER
On the surface, United Student Aid Funds v. Bible has nothing to do with LGBT rights. It’s a case involving a very technical dispute about student loan repayments, collection costs for borrowers who default, and how to interpret the Education Department’s regulations on this subject. The Court announced that it would not hear the Bible case on Monday, over the dissent of Justice Clarence Thomas.
Yet, just a few months ago — before Justice Antonin Scalia’s death deprived the Court’s conservative bloc of its majority — Bible was exactly the sort of case that bloc could have used to bring about a sweeping change in how the judiciary treats federal agencies. And that, in turn, could have handed an unexpected victory to anti-LGBT lawmakers who want to regulate where transgender individuals get to pee.
To explain, Bible (the case is named after a debtor named “Bryana Bible,” not the Judeo-Christian holy book) concerns the degree of deference courts owe to agencies when they are confronted with ambiguous regulations. When a law is ambiguous, the Supreme Court held in Chevron v. Natural Resources Defense Council, courts owe great deference to how executive branch agencies interpret that law in their own regulations.
As Justice John Paul Stevens explained in Chevron, such deference is appropriate for two reasons. “Judges are not experts in the field,” Stevens wrote, while agencies typically possess a great deal of expertise in the areas they regulate. Deference to agencies also promotes democratic ends because the agencies are not entirely removed from the electorate in the same way that judges with lifetime appointments are. “While agencies are not directly accountable to the people, the Chief Executive is,” Stevens explained, and most agencies are accountable to the president.
Sometimes, however, an agency drafts regulations that are themselves ambiguous. When that happens, Justice Antonin Scalia explained in Auer v. Robbins, courts should also defer to the agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”
This doctrine of Auer deference formed the backbone of a federal appeals court’s recent decision holding that schools must allow trans individuals to use the bathroom that corresponds with their gender identity. That decision deferred to the Education Department’s interpretation of its own regulations governing gender-segregated bathrooms. Without Auer deference, it’s possible that the trans bathroom case would have come down differently.
Chevron, it should be noted, is one of the most important and widely cited cases in federal administrative law. Nevertheless, conservatives began to lose faith in the idea that courts should defer to federal agencies around the same time that the Obama family moved into a home at 1600 Pennsylvania Ave.
Indeed, Auer deference is even more out of favor with conservatives than Chevron deference. As Thomas notes in his opinion calling for the Court to use the Bible case to “reevaluate” Auer, three current members of the Court — himself, Chief Justice John Roberts and Justice Samuel Alito — have “called for its reconsideration in an appropriate case.” Before his death, Justice Scalia joined these calls, even though Scalia authored the Court’s unanimous opinion in Auer.
If Scalia were still alive, in other words, that would be four votes to hear Bible. Under the Court’s rules, moreover, it only takes four votes for the justices to take up a case. Once the case was argued, the four most conservative justices would only need to convince the slightly-more-moderate-but-still-really-conservative Justice Anthony Kennedy to join them in order to overrule Auer.
If that happened, it would be a massive transfer of power from agency officials accountable to an elected president towards unelected judges. And one of the most immediate impacts would be that such a decision would give anti-trans lawmakers a powerful new weapon to wield in the war over bathrooms.
Instead, Bible will be remembered, if at all, for a short dissenting opinion joined by only one justice. It is likely that it would have ended differently if Justice Scalia were still around to back up his fellow Auer skeptics.