Deference to Administrative Interpretations of Regulations: Auer to Kisor and Beyond

ABSTRACT:

The Supreme Court’s jurisprudence has been moving further and further from the deference to administrative agency legal interpretations that guided much of judicial practice throughout the 1990s and early twenty-first century. Just this past June 2022, the Court decided West Virginia v. EPA, finding unlawful the monumental 2015 Clean Power Plan, without even a mention of the longstanding Chevron deference doctrine applicable to agency interpretations of federal statutes. The Court sidestepped any concrete questions about Chevron, and deference in the face of ambiguity, by deeming the questions before the Court to be too major for run-of-the-mill deference doctrines. But even in agency statutory interpretation cases this Term not deemed “major” by the Court, the justices similarly avoided heeding litigants’ calls to either apply Chevron deference or consider overthrowing the system altogether. See Becerra v. Empire Health Foundation & American Hospital Ass’n v. Becerra (both addressing Medicare rates).In contrast, the Court faced head on an analogous deference question in 2019, squarely considering in Kisor v. Wilkie a veteran’s request that the Court evaluate whether to overrule the system of deference to agency interpretation of regulations. The Court declined, leaving in place the doctrine known as Auer deference brought to prominence in a 1997 Supreme Court opinion by former Administrative Law professor Justice Antonin Scalia. That said, the Court in Kisor imposed a number of limitations on when, and how, courts should apply Auer deference.These two chapters on Auer deference and the Court’s reworking of the deference scheme in Kisor will appear in the American Bar Association’s anticipated 2022-23 volume on Leading Cases in Administrative Law. The chapters briefly examine the origin of Auer deference and the Court’s discussion in Kisor of the doctrine’s roots and function within the constitutional system of accountability. The chapters also briefly examine what remains of Auer deference after Kisor and how lower courts have recently been reconsidering the doctrine. Justice Kagan’s opinion for the Court in Kisor attempts to bring the application of, and theory underlying, Auer deference more in line with the democratic justifications by which the Supreme Court had traditionally evaluated and justified Chevron deference. But whereas the Court has all but ignored Chevron in the past couple of terms, it allowed Auer deference to see another day, in part at the behest of the Trump Administration in 2019, and against the request of a petitioner veteran seeking retroactive disability benefits.