The following is a statement from the Committee for Justice on the Supreme Court 9-0 ruling today in Kisor v. Wilkie, upholding but limiting the doctrine of Auer deference, which instructs courts to defer to an administrative agency’s reasonable interpretation of its own ambiguous regulations. The case involved the Veteran Administration's denial of disability benefits.
Washington, D.C. -- “The Court’s unanimous decision today is an important step towards reining in the largely unaccountable power of the administrative state, which has expanded enormously in recent decades," said Committee for Justice president Curt Levey.
At the same time, CFJ director of public policy Ashley Baker emphasized that "Today's decision is a small step. While the Kisor decision is a victory in restoring the courts’ duty of judicial review of administrative edicts and lays the groundwork for the eventual demise of Auer deference, the Court did not go far enough."
"Nonetheless, the legal regime under which courts give almost blind deference to federal bureaucrats' interpretations of regulations and statutes is beginning to wane," noted Levey. "Justice Gorsuch is correct that today's decision is more a stay of execution than a victory for deference to the administrative state."
"The sooner the Auer and related Seminole Rock precedents are retired, the better," said Baker, "because the expanding administrative state has eroded the accountability of Congress and the independence of the judiciary, while posing a significant threat to the Constitution's separation of powers."
Baker went on to explain that "Auer deference is a judge-made doctrine that incentivizes executive agencies, hiding under the cover of statutory ambiguity, to evade the notice-and-comment requirement for administrative rulemaking and expand the meaning of regulations beyond the statutory text."
Baker added that "Auer deference relieves Congress of the responsibility to write clear and unambiguous legislation, while leaving it to administrative agencies to address the difficult questions of policy and implementation. When Congress cedes power to administrative agencies, politicians have less accountability to their constituents."
"It is no wonder that Justice Scalia—despite having written the Supreme Court’s opinion in Auer—later explicitly called on the Court to reject Auer deference," Baker concluded.