In Auer v. Robbins (1997), the Supreme Court instructed the federal judiciary to defer to an administrative agency’s reasonable interpretation of its own ambiguous regulation. In recent years some of the justices have argued that this “Auer deference” violates a statute, the Administrative Procedure Act, and infringes the constitutional separation of powers.
The petitioner in Kisor v. Wilkie, a Vietnam veteran named James Kisor, asks the Court to overturn Auer. The Court heard oral argument in March, and it will issue a ruling in June.
In Kisor, for all we know, the Court will simply declare the regulation at hand unambiguous, approve the government’s understanding of it, and remand the case without addressing the issues surrounding Auer deference. The Court often makes fools of its many unauthorized haruspices.
Assuming the Court addresses Auer, however, here are four things to look for.
Who’s Afraid of the Separation of Powers?
Kisor is not necessarily a constitutional case. The Court could, for example, say merely that Auer is incompatible with the Administrative Procedure Act, which requires “the reviewing court” to “determine the meaning or applicability of the terms of an agency action.”
Alternatively, the Court could find a creative way to limit Auer without overturning it. That’s happened before. If the ruling is narrow, the justices might reserve disputes about constitutional structure for another day.
But don’t be surprised if Kisor sparks a passionate argument about the separation of powers. Several justices might use the case as an opportunity to share their thoughts on the administrative state’s place in our supposedly tripartite federal government.
Which of the “separate” powers does the administrative state exercise? The usual answer is that agencies fall within Article II and wield the executive power. Said another way, their role is to administer the legislation passed by Congress.
But this has long been a legal fiction. Congress delegates sweeping authority to the agencies, which do much more than just direct the details of statutory execution. Justice Stevens had it right when he criticized the modern Court’s failure to “admit that agency rulemaking authority is ‘legislative power.’”
The conventional view among Auer’s critics is that Auer deference lets agencies wield judicial power by interpreting regulations. But “interpreting” a broad regulation often amounts to crafting a whole new rule. What’s really at stake with Auer, therefore, is the judiciary’s power to confine the administrative state’s use of legislative power.
Auer deference is contentious because judges are powerful, regulators are powerful, and legislators are (by choice) weak. The fight over Auer is at its root a fight over how the powerful judges and the powerful regulators are to negotiate the constitutional distortions created by the proliferating abdications of the weak legislators.
Some of the justices will probably use Kisor to glorify the separation of powers. Watch for whether any of them acknowledges that our system is at this point better described as one of blended powers restrained by checks and balances. That is the first step to reaching the heart of the matter.
The big question is whether Kisor will lead to the overturning of Chevron v. Natural Resources Defense Council (1984). Whereas Auer instructs a judge to defer to an agency’s reasonable reading of a regulation, Chevron instructs her to defer to an agency’s reasonable reading of a statute. Of the two, Chevron is the far greater grant of policymaking authority to regulators.
No one criticized (or saw the need to defend) Chevron at the Kisor oral argument. But in his briefs Kisor strove to offer sound reasons to reject Auer yet accept Chevron. Several of the amici supporting Kisor did the same.
Chevron might be atrophying. In a dissent this year in BNSF Railway Co. v. Loos, Justice Gorsuch notes that, although “in the past, the briefs and oral argument” in the case “likely would have centered” on the Chevron rule, the petitioner instead devoted “scarcely any” attention to it. “No doubt,” Justice Gorsuch asserts, the petitioner “proceeded this way well aware of the mounting criticism of Chevron deference.”
Yet it’s far from clear that Chevron is in danger of being overruled altogether. Chief Justice Roberts has said that Chevron fits comfortably with both the Administrative Procedure Act and the Court’s duty to interpret the law. “We give binding deference to permissible agency interpretations of statutory ambiguities,” he has opined, “because Congress has delegated to the agency the authority to interpret those ambiguities.”
Justice Kavanaugh, for his part, has written that Chevron “makes a lot of sense,” at least when Congress uses words suggestive of delegation, such as “reasonable,” in statutes telling an agency to set standards.
A group of justices seeking to ditch Chevron would (presumably) need Chief Justice Roberts and Justice Kavanaugh to join them. So Chevron is probably not going anywhere.
The opinions in Kisor will likely offer hints, or more than hints, about where Chevron stands with the Court.
Where’s the Data?
One fear about Auer is that it has taught regulators to deliberately issue vague rules, knowing that they can then “interpret” them, ad hoc, as they see fit.
But is that true? Kisor’s lawyers cite a poll of government agents, about 40 percent of whom say Auer plays a role in their rule-drafting. But the study does not determine what role Auer plays. To the contrary, the study concludes that “it is a bit of a puzzle what impact . . . Auer deference has.”
“Here as elsewhere,” Judge Posner once complained, “evidence-based law remains a dream.” Auer is no exception. As Cynthia Barmore writes, “most commentary about Auer deference has been theoretical.”
Will removing Auer deference make regulations more or less understandable? Will it make the regulatory process more or less efficient? Will it preserve judicial resources or sap them? More fundamentally, will it change much at all?
If the Court overturns Auer, there will likely be a lot of back-and-forth among the justices on these questions. Consider whether either side’s high words and feats of logic are supported with hard facts.
Another Fight Over Stare Decisis?
Auer deference is not new. In fact, Auer merely confirms the validity of a rule found in Bowles v. Seminole Rock & Sand Co. (1945).
During the Kisor oral argument, Justice Kagan noted the significance of overturning a longstanding judicial principle. “We take it super-seriously when we do [it],” she said. “I mean, we used to,” she then quipped. With this bit of revisionist history, Justice Kagan captured a sudden concern among some of the justices about adhering to precedent.
Justice Breyer gives vent to this view in a recent dissent in Franchise Tax Board of California v. Hyatt, which overturns a 1979 decision on state sovereign immunity. “Each time the Court overrules a case,” he writes, “the Court produces increased uncertainty.” Hyatt leaves him sardonically wondering “which cases the Court will overrule next.”
If the Court continues to nibble at its past mistakes and fits of gallantry, we will see a lot of crocodile tears. It is, after all, immensely important to respect precedent, and even to resist the urge to make things up, in cases in which you’re not one of the five justices tossing a precedent or making things up.
Still, there is a sting in the fact that the man who wrote Auer, Justice Scalia, helped lead the charge to overturn it. His shift evokes Lord Westbury, who, according to Justice Jackson, once said: “I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” Justice Thomas joined the unanimous Auer decision, and he, too, has become a critic of it.
If the Court overrules Auer, expect the majority and the dissent to engage in a vigorous debate on stare decisis.
Also published by Forbes.com on WLF’s contributor page.