Courts Must Continue to Defer to Agency’s Interpretation of Regulations

June 26, 2019 by Dan McCue

WASHINGTON – A sharply divided U.S. Supreme Court on Wednesday upheld a series of legal precedents instructing courts to defer to an agency’s interpretation of its own regulations.

The ruling, written by Justice Elena Kagan, is a significant development in administrative law, and came to pass only because Chief Justice John Roberts broke with his conservative colleagues who were more than ready to chuck the precedents and place new limits on the power of federal agencies.

The issue of overturning precedents has been of keen interest to many observers who are watching to see how far and how fast the newly more conservative court is willing to go in its decisions — ever mindful that a challenge to Roe v. Wade may be in the wings.

The Auer deference doctrine was named after the 1997 case Auer v. Robbins, is premised on the idea that federal agencies are subject matter experts in their respective areas and are therefore better suited than judges to interpret their own regulations and gaps that may be found in current federal law.

As far as Justice Kagan was concerned, this makes perfect sense.

“Want to know what a rule means? Ask its author,” she wrote.

But the doctrine has been facing growing criticism in recent years from conservatives inside and outside the court, who contend the precedents have given the agencies far too much power.

Kagan appeared to try to meet the dissenters in the case halfway, suggesting that deference should only apply in cases where a regulation is truly ambiguous and the agency reading of it reasonable.

If a regulation isn’t ambiguous, the justice said, the “regulation then must mean what it means—and the court must give it effect, as the court would any law.”

Kagan conceded that regulations can make “the eyes glaze over,” but maintained “hard interpretative conundrums … can often be solved.”

Kagan said that when it applies, Auer deference gives federal agencies significant leeway in deciding what their rules mean.

“But that phrase ‘when it applies’ is important … because it often doesn’t,” she concluded.

But Justice Neil Gorsuch was far from pleased even with that assurance.

Instead, he said, writing for himself and his fellow dissenters on the court, the majority had left the Auer doctrine on “life support.”

He said the “new and nebulous qualifications and limitations” that his colleagues in the majority imposed mean the doctrine of agency deference “emerges maimed and enfeebled — in truth, zombified.”

The case before the justices was filed by James Kisor, a Vietnam veteran who applied for benefits for his post-traumatic-stress disorder.

The Department of Veterans Affairs agreed with Kisor that he suffers from PTSD but rejected his request for benefits dating back to 1983. When Kisor appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit, the court of appeals deferred to the VA’s interpretation of its own regulation and sided with the agency.

Last year Kisor appealed to the Supreme Court for help. While the majority refused to dispense of the Auer doctrine declined to overrule the Auer doctrine, it did give the disabled veteran a partial victory, sending his case back to the Federal Circuit for it to take another look.

The case is Kisor v. Wilkie, No. 18-15.

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