Gillian Metzger is the Stanley H. Fuld Professor of Law at Columbia Law School.

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying review of several subsequent petitions raising the issue and failing to engage with Auer in some cases it did grant. But against this background it seems hardly unexpected that the court granted cert in Kisor to decide Auer’s fate.

Not so fast. Looked at more closely, the court’s grant in Kisor is much more puzzling — and much more troubling for what the case may portend about how the Roberts Court, with its newly cemented conservative majority, views the administrative state.

It’s puzzling first of all because Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Central to the attack on Auer are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. Auer critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in Kisor itself. The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions. Not only is there no suggestion of any change in the agency’s interpretation, but there’s a strong argument — as the U.S. solicitor general maintained in his opposition to certiorari — that the agency’s interpretation is the best reading of the regulation at issue, making it unnecessary for the Supreme Court to reach the question of Auer deference at all.

This absence of evidence of Auer’s supposed ills is par for the course. As Daniel Walters argues in a forthcoming article in the Columbia Law Review, there is little empirical support for the fear that Auer will incentivize vague regulations. Indeed, agencies have strong reasons to regulate with clarity and specificity. Doing so makes it easier for regulated parties to conform to governing requirements and helps ensure that agencies do not run into fair-notice problems when they seek to enforce their regulations. Similarly, agencies that seek to avoid notice-and-comment rulemaking by promulgating binding new regulatory interpretations run a real risk of being found to have violated the Administrative Procedure Act. And if an agency offers a new interpretation of a regulation that changes agency policy in significant ways, it will have to explain and justify that change to satisfy a court that its action was not arbitrary and capricious — not an easy task when there is substantial reliance on the prior interpretation or unsupportive evidence in the record.

Another reason why the Supreme Court’s grant in Kisor is puzzling is that a number of administrative law doctrines already guard against the purported dangers of Auer deference. In addition, the court has taken steps to trim back Auer deference from perceived excesses. It has clarified that Auer deference is inappropriate when a regulation is unambiguous or simply parrots a statute, as well as when the government changed its interpretation during the litigation, when reason exists to suspect that the interpretation does not reflect the agency’s fair and considered judgment, and when the effect of deference would be to create de facto a new regulation or impose substantial financial liability for conduct occurring before the government’s new interpretation was announced.

Such an incremental option was available in Kisor too. The second question presented in the cert petition was whether Auer deference should yield to substantive interpretative canons, in particular the canon that ambiguities in veterans’ benefits programs should be interpreted in the veterans’ favor. Yet the Supreme Court granted cert only to resolve whether Auer deference should be overruled in its entirety. No efforts at moderation here.

The court’s insistence on taking up a broad challenge to Auer, in a case lacking the hallmarks of Auer abuse, suggests that its decision to hear Kisor is best understood as part of a growing constitutional attack on administrative governance evident in Roberts Court jurisprudence. In particular, some justices have condemned Auer deference as doubly unconstitutional, representing both an unconstitutional delegation of judicial power to the executive branch and an unconstitutional combination of lawmaking and law interpretation powers in the same hands. Until now, these constitutional arguments have failed to garner more than minority support, but Kisor may signal that is about to change.

This is when the grant in Kisor starts to look troubling. The constitutional attacks on Auer are analytically flawed, for reasons well-stated in the academic literature. These attacks take a rigid approach to interpretation and the separation of powers that is at odds with reality, our constitutional traditions and the nature of executive power. But the most important point is one that Adrian Vermeule emphasizes in his contribution to this symposium: The radical import of these attacks is not limited to overturning Auer, but would call into question the core legal foundations of the administrative state. Efforts to challenge Auer deference on statutory grounds, as violating the APA’s instruction that “the reviewing court shall decide all relevant questions of law,” might at first seem less threatening. Even these statutory moves are not easily cabined, however, and would cast doubt on other deference doctrines.

The disruptive potential of Kisor is therefore substantial. To be sure, the Supreme Court may pull back from an extreme constitutional holding. Perhaps it will settle for invoking constitutional concerns as a reason to replace Auer deference with a more modulated approach based on Skidmore v. Swift & Co., a 1944 decision under which agency regulatory interpretations are accorded sliding levels of deference based on their thoroughness, consistency and persuasiveness. In practice, the difference between Auer and Skidmore regimes may not be that great, especially given Auer’s growing phalanx of carveouts and qualifiers. And the Roberts Court has developed a penchant for combining broad rhetoric attacking the constitutionality of administrative governance with fairly minor tweaking of administrative arrangements.

Yet it is important not to lose sight of the impact of such constitutional rhetoric alone. It has a corrosive effect on perceptions of the administrative state’s legitimacy and opens the door for additional constitutional attacks in the future. The grant in Kisor is a cautionary tale. It represents years of effort by anti-regulatory advocates, who responded to the constitutional salvos fired in concurrences in Decker and Perez with a campaign to get the court to overturn Auer.

Of course, there is another possible outcome. A majority of the court could use Kisor as an opportunity to reaffirm the constitutionality of the administrative state and save addressing concerns about Auer-inspired administrative abuse for cases in which those problems are actually presented. Doing so would help dial down the constitutional and ideological thermostat in contemporary administrative law challenges. If this were to happen, the grant in Kisor would end up being not puzzling or troubling, but appropriately judicious.

* * *

Past cases linked to in this post:

Auer v. Robbins, 519 U.S. 452 (1997)
Decker v. Nw. Envtl. Def. Ctr. Ga.-Pac. W., Inc., 568 U.S. 597 (2013)
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015)
Skidmore v. Swift Co., 323 U.S. 134 (1944)
Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50 (2011)

Posted in Kisor v. Wilkie, Featured, Symposium before the oral argument in Kisor v. Wilkie

Recommended Citation: Gillian Metzger, Symposium: The puzzling and troubling grant in Kisor, SCOTUSblog (Jan. 30, 2019, 10:22 AM), https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-troubling-grant-in-kisor/