How will the recent, significant changes in administrative law doctrine affect on-the-ground administrative activities of longstanding vintage? This question blooms today in a thousand different places, offering administrative lawyers endless opportunity to give that most favored of lawyerly responses: “It depends.” In Agency Amici, an article recently published in U.C. Davis Law Review, Emily Hammond offers a rich and sophisticated analysis of the question as it relates to the age-old practice of administrative agencies filing amicus briefs in ongoing litigation between other parties. The article contributes to the literature on agency amici with empirical evaluation, in-depth case studies, and normative analysis at a moment of transition from the old regime of judicial deference under Chevron and Auer to the new regime under Loper-Bright and Kisor. The result is a rich and fascinating portrait of an established practice that sheds useful light on the possibilities for its future.
An amicus, or “friend of the court,” brief is filed in ongoing litigation by someone who, though not a party to the case, has a strong interest in the issues that will be decided. A federal administrative agency may file such a brief in a case that implicates its statutory responsibilities but does not involve judicial review of the agency’s own action. In these cases, the agency may be able to offer the court a well-informed statutory analysis, as well as practical and regulatory context that the parties to the case may not have the ability or incentive to provide.
Agency Amici begins with a literature review and a comprehensive survey of the administrative law of agency amicus practices. Agencies must have statutory authority to file amicus briefs. The article explains that it is relatively common for Congress to give agencies statutory authority to file amicus briefs in the lower courts. One might expect that such authority would be extended less often to executive branch agencies than to independent agencies. But the analysis does not corroborate that expectation. After surveying this landscape, the article evaluates the tension between these grants of litigating authority and the ever-increasingly assertion of centralized control over agency policymaking, whether through the expansion of the unitary executive theory or the rise of presidential administration. It then evaluates whether agency amicus briefs can help to expand access to justice and how they fare under common procedural expectations for the development of agency policy. Along the latter dimension, amicus briefs are not subject to the same procedural controls as other kinds of agency action, and the article does a wonderful job of exploring how this affects efficiency, expertise, and political legitimacy.
The article’s greatest contribution is its deft analysis of the issue of judicial deference to agency views at this critical moment of inflection as the Supreme Court moves administrative law into a new era. Agencies file amicus briefs in the hopes of influencing how courts interpret statutes or regulations, decide cases, and thereby develop the law. The power of an amicus brief may therefore depend on how much judicial deference it can command. The degree of available deference was potentially quite high under Auer (1997)—which the Court sharply limited in Kisor (2019)—and under Chevron (1984)—which the Court overruled in Loper-Bright (2024). In the wake of these developments, Skidmore (1944) “respect” for an agency’s persuasive and well-informed views (a standard established in a case involving an agency amicus brief!) is poised to become increasingly important.
Agency Amici does a terrific job of explaining these seismic changes in administrative law doctrine, and it offers a typology of agency amicus briefs that is well designed to suggest how amicus briefs can be effective under the new deference regime. The typology identifies a variety of situations in which agencies commonly file amicus briefs, including: (1) shared private and public enforcement responsibilities (Pp. 1714-23); (2) access to courts and hurdles to review (Pp. 1723-26); (3) preemption (Pp. 1727-30); (4) federally funded, state-administered restorative justice programs (Pp. 1730-32); and offering views on another agency’s statutory interpretation in areas of overlapping or shared statutory responsibilities. (Pp. 1732-34.) The typology is enriched and made more instructive by deep dives into individual cases in which agencies have filed amicus briefs. Each of these deep dives includes an accessible description of the case, the legal issue, the agency’s contribution qua amicus, and the court’s decision, including its reaction (if any) to the amicus brief.
The article’s typology facilitates a close analysis that pulls apart strands of legal doctrine that might otherwise be confounding, thus opening a window into how agencies and courts can continue to benefit from agency amici practice in a world of reduced judicial deference. The article concludes that “most agency amici confine themselves to matters squarely within their statutory domains.” (P. 1734.) That is, agencies use statutory authority to file amicus briefs prudently, to address important issues and to communicate views of the law and its underlying policy realities that are grounded in sound reasons and longstanding experience. Although the courts often decide cases in a manner consistent with an agency amici’s views, they rarely engage with—or even acknowledge—the amicus briefs. In fact, judicial engagement seems to be more likely when a court takes a different view of the issue. For these reasons, “how much difference [agency amici] make remains elusive.” (P. 1734.)
The article concludes with a normative analysis that offers potential lessons for both administrations and courts. As to the former, the article concludes that “it is evident that most briefs match expected presidential preferences.” (P. 1735.) This may allay concerns about the relative freedom of agency amicus practices from the formalized process of central executive control. As to the courts, the agencies’ prudent use of amicus briefs may mitigate concerns about their relative lack of procedural control, while reducing the likelihood that reduced judicial deference will meaningfully affect the usefulness of agency amicus briefs going forward. But the analysis also suggests that courts could do better. By engaging more with agency amicus briefs, courts could make their own decisions more transparent and deepen incentives for agencies to develop the kind of stable and well-reasoned positions that have the power to persuade.
