6 articles
Eric S. Schmitt is the Attorney General of Missouri. Kisor v. Wilkie missed a golden opportunity to restore the role of federalism and the separation of powers in federal administrative law. Where the federal courts have whiffed, state courts should step up to the plate.
Thomas W. Merrill is the Charles Evans Hughes Professor at Columbia Law School. He filed an amicus brief in support of the challenger in Kisor v. Wilkie. An important subcurrent in today’s Supreme Court concerns the legitimacy of the administrative state.
Daniel Walters is an assistant professor of law at Penn State Law. The first line in Justice Neil Gorsuch’s partial concurrence in Kisor v. Wilkie says it all: “It should have been easy for the Court to say goodbye to Auer v. Robbins.” Here, Gorsuch betrays a hint of chastened bewilderment in an otherwise fiery, confident performance.
Ronald Levin is the William R. Orthwein Distinguished Professor of Law at Washington University in St. Louis. He and other “Administrative Law Scholars” submitted an amicus brief in Kisor v. Wilkie, supporting Auer deference.
Michael Herz is the Arthur Kaplan Professor of Law at Benjamin N. Cardozo School of Law, Yeshiva University. Under the “Auer doctrine,” named for the 1997 decision Auer v. Robbins, courts accept an agency’s interpretation of its own ambiguous regulation unless that interpretation is clearly erroneous, or flatly inconsistent with the text of the regulation, or unreasonable, or something like that.
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.