Argument preview: Justices to tackle important agency-deference question

Editor’s Note: An earlier version of this post ran on January 28, 2019, as an introduction to this blog’s symposium on Kisor v. Wilkie, as well as at Howe on the Court, where it was originally published.

Next week the Supreme Court will hear oral argument in Kisor v. Wilkie, which arises from a dispute over benefits for a Marine who served in the Vietnam War. Although it may sound dry, the case could be one of the most consequential of the term, because the justices will decide whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” The Supreme Court’s ruling could have a significant impact far beyond veterans’ benefits, from the environment to immigration, and it could also shed more light on when and whether the justices are willing to overrule their prior cases.

Congress makes the laws. But there will inevitably be gaps to fill in those laws. Under federal immigration law, for example, someone who is not a U.S. citizen can be deported if he is convicted of “child abuse” – but the law does not say exactly what kind of conduct constitutes “child abuse.” Under a doctrine known as the Chevron doctrine, when a law that a federal agency administers is not clear, courts will generally accept the agency’s interpretation of that law as long as the interpretation is reasonable (and even if the court might interpret the law differently). One rationale for the rule is that the agency has more expertise in the subject covered by the law than courts do.

The same rationale is at the heart of the doctrine of Auer deference, which was named after the 1997 case Auer v. Robbins and is sometimes also known as Seminole Rock deference, after the 1945 case Bowles v. Seminole Rock & Sand Co. As law professor Aaron Nielson wrote in 2016, “doesn’t the agency that wrote a regulation know best what it means?” Supporters of the doctrine also argue that it makes it easier for courts to review challenges to an agency’s interpretation of its regulations, because they only have to determine whether the interpretation is reasonable, rather than whether it is the best interpretation. And because courts around the country are more likely to uphold the agency’s interpretation, they add, the doctrine helps to ensure that everyone is on the same page about what a regulation means. But the doctrine has also become a target for conservatives and business groups, who believe that it gives federal agencies too much power.

The case now before the justices was brought by James Kisor, who served in the Marines during the Vietnam War and later filed for benefits for post-traumatic-stress disorder. In 2006, the Department of Veterans Affairs agreed with Kisor that he suffers from PTSD, but it refused to give him benefits dating back to 1983, as Kisor had requested. When it denied Kisor’s claim, the VA relied on its interpretation of the term “relevant” in one of its regulations. Kisor appealed unsuccessfully to the U.S. Court of Appeals for the Federal Circuit, which deferred to the VA’s interpretation of its regulation.

Kisor then went to the Supreme Court, asking the justices to review his case. He argued that Auer deference is inconsistent with the federal Administrative Procedure Act, which governs how agencies propose and enact regulations, because it gives agencies significant power without requiring them to engage in notice-and-comment rulemaking. In particular, he notes, the APA specifically envisions that, if a regulation is ambiguous, courts – rather than agencies – will resolve the ambiguity. And Auer deference is, Kisor suggests, “fundamentally at war with basic principles of predictability and public notice”: Someone who is affected by the regulation can try her best to comply with it, only to discover later that the agency has a different interpretation of the regulation.

More broadly, Kisor continued, Auer deference raises fundamental constitutional concerns. First, deferring to an agency’s interpretation of its own regulation violates due process, because it does not give the people or entities affected by the regulation fair notice of what they can or cannot do.

Auer deference, Kisor contended, also raises concerns about the separation of powers – the idea that different responsibilities of government are allocated to different branches, to prevent any one branch from having too much power. When a federal court defers to an agency’s interpretation of its own regulation, he said, the court is not doing its own job, which is to interpret the law, and courts cannot serve as a “check” on the political branches of the government.

Finally, Kisor acknowledges that overruling prior cases is not something to be done lightly. But it is warranted here, he emphasizes, because the cases underlying the Auer doctrine were wrong when they were decided, and “practical developments have made” that “earlier error all the more egregious and harmful.”

The federal government urged the justices to stay out of the dispute. It acknowledged that the question whether to overrule Auer is an “important one” that “may warrant” the Supreme Court’s “review in an appropriate case,” but it told the justices that Kisor’s case is not the right one in which to consider that question. The government argued that the VA’s interpretation of the regulation is correct, so courts don’t need to defer to it at all, and the case would therefore turn out the same way with or without Auer deference.

In its brief on the merits, the government acknowledges that the Auer doctrine “raises significant concerns” but tells the justices that they should limit the doctrine rather than scrap it altogether. In particular, the government argues, courts should not defer to an agency’s interpretation of its own regulation when that interpretation is not reasonable. Using this approach, the government suggests, will often eliminate the need to defer to agencies at all. But even if the agency’s interpretation is reasonable, the government continues, courts should defer to it only if several other conditions are met: The people or entities affected by the regulation must have had fair warning of the agency’s interpretation, for example; the interpretation must be based on the agency’s expertise in the subject matter covered by the regulation and cannot be at odds with the agency’s previous views; and the interpretation must be the result of agency-wide deliberation, rather than coming from lower-level employees.

The government also contends that principles of stare decisis – the presumption that courts will normally follow their prior cases – point toward leaving the Auer doctrine in place, in the more limited version that the government proposes. There are, the government asserts, a variety of reasons to keep Auer in place, including the fact that Congress can always change it and that people have long relied on it – but Kisor hasn’t offered any good reason to overrule it.

When Kisor and his lawyers arrive at the Supreme Court for the oral argument next week, they are likely to find a sympathetic audience in at least several justices who have recently suggested that the Supreme Court may want to reconsider Auer. In 2013, after the late Justice Antonin Scalia called for the court to revisit Auer, Chief Justice John Roberts – joined by Justice Samuel Alito – wrote that Scalia had raised “serious questions” about Auer and indicated that the justices might want to revisit the issue in a later case, when it had been fully discussed by both sides. In March 2018, Justice Neil Gorsuch joined Justice Clarence Thomas in a dissent from the denial of review in another case asking the justices to overrule Auer; Thomas described the doctrine as “constitutionally suspect” and “on its last gasp.” And law professor Christopher Walker observed last summer for this blog that, although Justice Brett Kavanaugh has not specifically weighed in on Auer deference, “his concerns about interpretative doctrines that turn on ambiguity, coupled with his views on separation of powers, seem to suggest he would be receptive to calls to eliminate – or at least further limit – Auer deference.”

On the other hand, the court’s four more liberal justices may be inclined to keep Auer deference – not only because they support the principle, but also because they may fear that any time the Supreme Court overturns its longstanding cases, it may make it easier for the justices to overrule a precedent next time they are urged to do so. With a new and more conservative majority since the retirement of Justice Anthony Kennedy, and the likelihood that issues like abortion and affirmative action could return to the Supreme Court in the not-too-distant future, that’s something that the liberal justices will probably want to steer clear of, and the government’s brief may offer them a middle ground to try to do so in this case.

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Past cases linked to in this post:

Auer v. Robbins, 519 U.S. 452 (1997)
Bowles v. Seminole Rock Co., 325 U.S. 410 (1945)