Bench Memos

Politics & Policy

The Court’s Missed Opportunity in Kisor

In Kisor v. Wilke, the Court had a major opportunity to rein in the vast and unchecked power of the administrative state by overruling the Auer doctrine, which requires federal courts to defer to an administrative agency’s reasonable interpretations of its own regulations. But in its decision issued today, “a bare majority flinches, and Auer lives on,” in the words of Justice Gorsuch.

The plaintiff in Kisor is a Vietnam veteran who, after initially having a claim for disability benefits rejected by the Veterans Administration (VA) in 1982, was awarded benefits in 2006 after he reopened the matter and presented new evidence about his military service and the PTSD he suffered as a result. The dispute between Kisor and the VA was whether the agency’s interpretation of a regulation, under which the award of benefits would not be retroactive back to 1982, should prevail.

In a decision by Justice Kagan, the Court punted on whether the agency interpretation involved in this case deserves deference under Auer, asking the lower courts to consider multiple factors, including whether the underlying regulation was “genuinely ambiguous” and whether the agency’s reading of it was “reasonable,” “authoritative,” “in some way implicat[ing] its substantive expertise,” and reflective of its “fair and considered judgment.” Kagan admitted “the limits of Auer deference are not susceptible to any rigid test”—an understatement.

While the practical result of this holding is to somewhat narrow Auer, and thus the power of unaccountable bureaucrats, Kagan’s opinion, along with a partial concurring opinion written by Chief Justice Roberts, are convoluted assertions of raw judicial power. It remains to be seen how lower courts react to the Court’s muddled attempt to restate the operative standard.

It was left to Justices Gorsuch and Kavanaugh to argue in separate concurrences in the judgment that Auer should be overruled rather than left “zombified.” Gorsuch’s opinion, joined in relevant part by Thomas, Alito, and Kavanaugh, illustrated how under Auer, agency interpretations have the same practical effect as rulemaking. Before even looking at the Constitution, that violates agencies’ statutory authority under the Administrative Procedure Act (APA), which sets clear steps agencies must follow before promulgating a new rule, not to mention the APA’s directives to courts to “determine the meaning” of relevant “agency action” and to “set aside agency action . . . found to be . . . not in accordance with law.” Even Roberts, who joined other parts of Kagan’s opinion, did not join a section of Kagan’s analysis that dubiously attempted to reconcile Auer with the APA.

More fundamentally, Auer deference is inconsistent with the separation of powers established under the Constitution. As Gorsuch put it, “far from being ‘kept distinct,’ the powers of making, enforcing, and interpreting laws are united in the same hands—and in the process a cornerstone of the rule of law is compromised.” He recognized that executive officials by design cannot be expected to be “wholly impartial,” and he warned against “placing a judicial imprimatur on what is, in fact, no more than an exercise of raw executive power.”

Kavanaugh’s opinion, joined by Alito, reiterated the importance of impartiality: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here.”

Kavanaugh also noted that the issue of Auer deference is separate from that of the Chevron doctrine, which involves judicial deference to agency interpretations of statutes enacted by Congress. Since Roberts’ partial concurrence asserted that the Court’s decision in Kisor does not “touch upon” the question of Chevron deference, one can hope that there are five votes on the Court to overrule Chevron when that question arises. But by falling short on Auer deference, the Court missed a real opportunity to impart the genius of constitutionalism to an area of law that badly needs it.


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