By a 5-4 vote in Kisor v. Wilkie, the Supreme Court today declined to reject so-called Auer deference,* the judicial practice of deferring to a federal agency’s reasonable reading of its own regulations.
Stated at this very general level, the ruling might sound like a significant defeat for those seeking to rein in the administrative state. But in revisiting what Auer deference means, Justice Kagan’s majority opinion goes so far to cabin it that there may be little or no operational difference between her reconception of Auer deference and Justice Gorsuch’s flat-out rejection of it. In short, if this is a loss, I wish that many other losses over the years had been so minor.
1. Let’s take a look at the positions of the various justices:
a. Kagan’s lead opinion garnered a majority—herself, her three liberal colleagues, and the Chief Justice—for most of its parts, but lost the Chief Justice on two parts.
In one majority portion (Part II-B) of her opinion, Kagan set forth several limits on the application of Auer deference. First, “the possibility of deference can arise only if a regulation is genuinely ambiguous, … even after a court has resorted to all the standard tools of interpretation.”
Second, even where a rule is genuinely ambiguous, a court, in deciding whether to accord Auer deference to the agency reading, “must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” (Emphasis added.) “The inquiry on this dimension does not reduce to any exhaustive test.” But some essential ingredients include whether the agency reading is actually the agency’s authoritative position; whether the reading “implicate[s] [the agency’s] substantive expertise”; and whether the reading reflects the agency’s “fair and considered judgment.”
In a plurality portion of her opinion (Part III-A, joined only by her three liberal colleagues), Kagan argued that Auer deference is consistent with the Administrative Procedure Act’s mandate that courts “determine the meaning” of an agency rule.
In another majority portion (Part III-B), Kagan concluded that stare decisis considerations cut strongly against rejecting Auer deference.
b. Chief Justice Roberts wrote a brief concurring opinion “to suggest that the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” As he pointed out, Kagan’s account of “the prerequisites for, and limitations on, Auer deference” are very similar to Gorsuch’s list of “the reasons that a court might be persuaded to adopt an agency’s interpretation of its own regulation.”
c. In his own opinion for himself and Justices Thomas, Alito (in large part), and Kavanaugh, Justice Gorsuch argued (in Part II) that Auer deference violates the Administrative Procedure Act. At the same time, he agreed with the Chief that there may be little practical difference between Kagan’s confining of Auer deference and outright rejection of it: As he put it, the “silver lining” is that the “majority leaves Auer so riddled with holes that, when all is said and done, courts may find that it does not constrain their independent judgment any more than” the Skidmore doctrine he favors (under which courts follow the agency’s view only to the extent that it is persuasive).
In his Part V (not joined by Alito), Gorsuch has an interesting discussion whether stare decisis should apply at all to “an interpretive methodology” (as opposed, say, to a statutory decision). Among other things, he also pondered how stare decisis allows the majority “so freely to remodel Auer.”
2. The Chief’s position in this case is something of a puzzle. Of the nine justices, he is the only one who does not take a position, one way or the other, on whether Auer deference is consistent with the APA. One obvious possible answer to that puzzle is that the Chief saw it unnecessary to form a position on that question: even if Auer deference did violate the APA, the difference between Kagan’s reformulation of Auer and Gorsuch’s position was too minor to matter. And, he might have thought, why bother formally overruling Auer if you can achieve largely the same result without doing so?
* Not to be confused with Chevron deference, the judicial practice of deferring to a federal agency’s reasonable reading of a statute that it is charged with administering.