Cory L. Andrews and Corbin K. Barthold are, respectively, Senior Litigation Counsel and Litigation Counsel at the Washington Legal Foundation, which filed an amicus brief in support of the challenger in Kisor v. Wilkie.

When a senator accused him of not filling patronage posts fast enough, President Grover Cleveland replied: “I suppose you mean I should appoint two horse thieves a day instead of one.”

Cleveland famously vetoed a bill to give federal subsidies to drought-stricken Texas farmers. Why? “Though the people support the Government,” the president wrote, “the Government should not support the people.”

Our 22nd and 24th president was perhaps the last laissez-faire Democrat to occupy the White House. Yet even Cleveland, though he vetoed many war pension bills, believed the federal government should support wounded Civil War veterans.

So it is only a minor paradox for a Supreme Court case brought by James Kisor, a Vietnam veteran seeking retroactive disability benefits for his PTSD, to attract the support of small-government groups that want to limit the power of government agencies.

The question in Kisor v. Wilkie is whether a court must defer to an administrative agency’s plausible interpretation of its own ambiguous regulation. Auer v. Robbins says it must. Arguing that agencies shouldn’t be allowed both to write and authoritatively interpret their own rules, Kisor asked the Supreme Court to overrule Auer.

The ambiguous regulation in Kisor’s case is a rule that allows the Department of Veterans Affairs to retroactively grant a benefits claim after obtaining “relevant” records that existed, but were never considered, when the claim was denied.

Kisor argued that some papers documenting his combat experience are such “relevant” records. The government contended they aren’t, because whether Kisor partook in combat wasn’t a point of contention when the VA first denied his claim. According to the government, “relevant” doesn’t mean “relevant to an element of the veteran’s claim” but “relevant to the outcome of the dispute.” Concluding that the word “relevant” is ambiguous, the U.S. Court of Appeals for the Federal Circuit deferred to the government’s interpretation and affirmed the denial of retroactive benefits.

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In a long, fragmented opinion with no dissents, the Supreme Court has vacated the judgment below and remanded the case for reconsideration. According to the majority, the Federal Circuit “jumped the gun” in declaring the VA’s rule ambiguous. What’s more, the appeals court shouldn’t have assumed that the VA’s interpretation implicated its substantive expertise in a “fair and considered judgment.”

With the wind at his back, Kisor may well go on to win the VA benefits he deserves. But his fight to abolish Auer deference — and to check the administrative state — is lost, at least for now.

Justice Elena Kagan (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor), refuses to overrule Auer. Doing so would wipe out “a long line of precedents … going back 75 years or more.” And abandoning Auer would “cast doubt on many settled constructions of rules.” Besides, Congress is always free to alter or repeal Auer, if it so desires.

Nor, the majority insists, does Auer skirt the separation of powers. “No binding of anyone occurs merely by the agency’s say-so.” The role of interpreting agency rules remains with the courts, even if judges “sometimes divine that meaning by looking to the agency’s interpretation.” At bottom, “courts retain the final authority to approve—or not—the agency’s reading” of a regulation.

While reinforcing sound limits on the exercise of Auer deference (nearly all of which are grounded in earlier precedents), the majority insists that Auer “retains an important role in construing agency regulations.”

Four justices would have overruled Auer. Though agreeing that Kisor’s case should be vacated and remanded, Justice Neil Gorsuch (joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh) contends that the Supreme Court has “maimed and enfeebled” Auer deference. By keeping Auer “on life support,” the majority deprives the lower courts of clarity and litigants of the judicial independence that the Constitution guarantees.

After all, “if the court agrees that the agency’s reading is the best one, Auer does no real work.” So Auer deference “matters only when a court would conclude that the agency’s interpretation is not the best or fairest reading of the regulation.”

In other words, Auer “tells the judge that he must interpret” binding rules to mean “not what he thinks they mean, but what an executive agency says they mean.” This unites “the powers of making, enforcing, and interpreting laws” in the same hands. At best, it blurs the Constitution’s separation of powers.

Neither side is insane, of course. Both sides make fair points. And ample precedents abound throughout Kagan’s and Gorsuch’s sparring opinions. Indeed, the chief justice suggests “that the distance between the majority and Justice Gorsuch is not as great as it seems.” Perhaps.

Some commentators even see the case as a neutering of Auer. Yet a decision that hinges on stare decisis is tough to sell as one that erodes the very precedent under scrutiny. Kisor didn’t merely argue for a narrowing construction; that was the U.S. solicitor general’s angle. Kisor argued for the death of Auer. He didn’t get it. And judges and government agencies will continue to cite Auer (and Kisor) for many years to come.

But given the stakes — the core constitutional principle of self-government — why not resolve Kisor by adhering to our national charter? Under that venerable scheme, Congress enacts laws; executive branch agencies promulgate rules to implement those laws; and courts interpret the meaning of the words that comprise both the laws and the rules. Auer confuses — or worse, ignores — these distinctions.

As Gorsuch points out, the Supreme Court has long held that Congress can’t “indirectly control the action of the courts, by requiring of them a construction of the law according to its own views,” citing 1995’s Plaut v. Spendthrift Farm Inc. It is, after all, the exclusive province of the judiciary to “say what the law is.” But if Congress can’t control the judiciary’s interpretation of a federal law, how can an executive-branch agency control the judiciary’s interpretation of a federal regulation? Yet that is precisely the kind of control Auer deference enables.

The separation of powers would, James Madison thought, spur competition among the government’s three branches. But the system he and the other Founders devised is (and always will be) vulnerable to subversion by ideologically aligned judges, legislators and bureaucrats.

In his short concurrence, Kavanaugh reminds advocates for a limited government that all isn’t lost. He agrees with Roberts that the propriety of deferring “to agency interpretations of their own regulations” is a far cry from that of deferring to “agency interpretations of statutes enacted by Congress.”

The implication is clear: The fight over Auer deference toward ambiguous regulations may be lost; but a fight over deference under Chevron U.S.A. v. Natural Resources Defense Council toward ambiguous laws is surely on the horizon.

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As historian H.W. Brands observes, Cleveland’s thinking matched that “of many, perhaps most, Americans in the 1880s.” Cleveland urged those Americans to “steadfastly resist” the “tendency to disregard the limited mission” of “the general government.” He would urge the same upon us, as would most of the presidents who came before him, and even a few who came after. Those leaders would see themselves as urging no more than that we adhere to our foundational text, the Constitution.

So perhaps when faced with a close question about constitutional structure, we should err on the side of checking the ascendency of the administrative state and preserving what’s left of the separation of powers.

“It is not by the consolidation, or concentration of powers, but their distribution, that good government is effected,” Thomas Jefferson warned. “Were we directed from Washington when to sow, and when to reap, we should soon want bread.”

Posted in Kisor v. Wilkie, Symposium on the court’s ruling in Kisor v. Wilkie

Recommended Citation: Corbin K. Barthold and Cory L. Andrews, Symposium: A small win for James Kisor; a big loss for the Constitution, SCOTUSblog (Jun. 27, 2019, 2:19 PM), https://www.scotusblog.com/2019/06/symposium-a-small-win-for-james-kisor-a-big-loss-for-the-constitution/