Apr 10, 2019

Has the “Auer” Glass Run out for Judicial Deference?

How a Supreme Court Decision Could Change the Regulatory Landscape

Recently, I’ve discussed different facets of the Kisor v. Wilkie Supreme Court case at The Federalist and Law 360. There is a real possibility for significant changes to the judicial deference that courts give administrative agencies during this SCOTUS term.

Two weeks ago the Court heard oral arguments in Kisor.  While it is often difficult to predict precisely what the Court will do in any given case, oral arguments can give insight into what the justices are thinking, and what the potential ruling might look like. In Kisor, the arguments indicate that the last hour may have come for Auer deference, the underlying issue at the heart of the case.

While the case may seem to be simply about an agency decision regarding veterans’ benefits on its face, the Supreme Court is actually addressing the question of whether or not judicial deference to agency interpretations of their own rules should continue. Currently, courts give significant deference to agencies’ interpretations in such cases unless shown to be clearly erroneous or inconsistent with regulations. As a result, it can be very difficult to challenge these decisions, even if other interpretations may seem more reasonable.

Judges and justices have called into question whether such deference to administrative agencies is actually appropriate even before the case was granted cert. Oral arguments have given us further insight into how such deference may evolve.

While we certainly don’t know for sure how the court will rule, oral arguments did seem to suggest a coming change to Auer deference. The question is how this deference is changing, whether it will go away altogether, and how this decision might impact other judicial deference doctrines like Chevron.

The solicitor general admitted that the doctrine could be problematic as applied at times and argued for retaining such deference with limits rather than undoing it altogether and several of the justices seem sympathetic to retaining or merely limiting the doctrine. Chief Justice Roberts raised the question of how much of a change would result from overruling Auer.

Meanwhile, the justices also noted the problems with allowing agencies to establish such interpretations without public input on the matters that would be subject to such regulations. Justice Gorsuch was more outspoken about the problems that a wide variety of parties appear to find with certainty and reliance under Auer deference currently. Taken together this signals that we will likely see a significant change in the deference that agencies are currently granted under Auer even if the Court does not get rid of it entirely, but it remains to be seen what and how limited those changes might be.

It remains to be seen how much of an impact a decision to overturn or limit Auer would have on the day-to-day decision making within the administrative state. Agencies do not typically seek to deliberately draft ambiguous regulations. And it may not change agencies’ use of “soft law,” a useful policy tool for dealing with emerging tech. But, as I’ve argued elsewhere, modifying or getting rid of Auer would give those challenging agency interpretations a fair shot. Courts would need to more evenly weigh interpretations of both statutes and regulations, rather than having agencies do so themselves.

States have already shown how this might play out. Some chose never to adopt such deference in their courts and others have started to question and do away with it. Last year, Arizona did away with its own state-level version of Chevron deference to state administrative agencies through legislation. Other states have followed similar paths and ended agency deference through voter-endorsed amendments or judicial decisions. These state-level experiments show that there are workable alternatives to the current model of judicial deference.

While we won’t know exactly how the Court will rule in Kisor, oral arguments, as well as past statements, make it likely we are about to see big changes to existing deference to the administrative state. But even once such a decision comes down, the question will remain how that change will play out both for the administrative state and those regulated by it.

Photo credit: Senator Claire McCaskill/Flickr

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