The following op-ed by Committee for Justice director of public policy Ashley Baker was published in The Washington Examiner:
Thirty-seven years ago, James Kisor filed a claim for disability benefits for post-traumatic stress disorder resulting from a deadly combat mission in the Vietnam War. The next year, his claim was denied. In 2006, Mr. Kisor reopened his claim, arguing that the VA failed to consider the relevant records. The Department of Veterans Affairs granted him benefits, but only from the date of the new claim, citing its interpretation of the VA regulation governing retroactive benefits.
Kisor appealed the decision to the U.S. Court of Appeals for the Federal Circuit, which deferred to the VA’s interpretation of its regulation. The Court’s reasoning was based on Auer deference, a doctrine that instructs courts to defer to a federal agency’s reasonable interpretation of its own ambiguous regulations.
So Mr. Kisor appealed to the Supreme Court, which ruled 9-0 on Wednesday to uphold this judge-made doctrine, while placing limits on it. The Justices sent the case back to the lower court to consider Kisor's claim in light of these new limits.
The Court's decision in Kisor v. Wilkie declined to overrule the governing Supreme Court precedents, Auer v. Robbins (1997) and Bowles v. Seminole Rock & Sand Co. (1946). However, the decision was nonetheless an important step towards reining in the largely unaccountable and ever-expanding administrative state, which has eroded the accountability of Congress and the independence of the judiciary, while posing a significant threat to the Constitution's separation of powers."
Moreover, Auer deference incentivizes executive agencies to evade the requirement for notice-and-comment rulemaking and expand the meaning of regulations beyond the statutory text, while hide under the cover of statutory ambiguity.
Instead of writing clear and unambiguous legislation, Congress is relieved of the responsibility to legislate, leaving it to the agencies to address the difficult questions of policy and implementation. As Congress cedes power to these agencies, its members have less accountability to their constituents.
The judiciary is similarly relived of its duty to interpret ambiguous statutes. In sum, Auer deference allows judges to abdicate their judicial duty, the branch closest to the people to abdicate its legislative function, and the fox to guard the administrative hen house. As a result, administrative state has come to pose a significant threat to the Constitution's three-part separation of powers.
The public is left with ambiguous laws and the tens of thousands of federal bureaucrats needed to interpret them. As James Madison wrote in Federalist No. 62:
It will be of little avail to the people…if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man … can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
“Maybe the powerful,” Justice Neil Gorsuch wrote in his Kisor concurrence, “can wheedle favorable outcomes from a system like that—but what about everyone else? They are left always a little unsure what the law is, at the mercy of political actors … The rule of law begins to bleed into the rule of men.”
Surprisingly, the late Justice Antonin Scalia wrote the majority opinion in Auer, a decision which he came to strongly regret. In a speech after Scalia’s death, Justice Clarence Thomas described an exchange between the two of them on the bench. “Auer is one of the worst opinions in the history of this country!”, Scalia said, leaning over to Justice Thomas. “You wrote it!”, Thomas responded.
Referring to this “rule that ‘the agency is always right,’" Gorsuch writes in his concurrence that "if you find yourself in a place as absurd as that, you might want to consider whether you’ve taken a wrong turn along the way.” Clearly, Justice Scalia realized before his death that he had taken a wrong turn.
Hopefully Scalia’s wrong turn will be corrected in the near future. Justice Gorsuch thinks so, writing that "today’s decision is more a stay of execution than a pardon.” But for now, Auer deference will live another day.
And although Mr. Kisor had his day in Court, he still does not know when—or if—he will receive his disability benefits.