The Supreme Court last week decided an important case in a way that left many observers confused about what it had actually done. At issue in Kisor v. Wilkie was whether to overturn Auer v. Robbins (1997), which held that lower courts must defer to federal agencies' interpretations of their own rules. The justices voted unanimously to send the case back to the lower court, which had invoked Auer deference in approving a Veterans Affairs Department interpretation of its own rule. The majority opinion, written by Justice Elena Kagan, added a complicated set of considerations before a court could defer to an agency's rule. In effect this new rule replaced Auer deference.
Yet the court was divided on whether anything should supplant the former rule. The three other liberals concurred with Justice Kagan, while the four conservative associates were most or all of a concurring opinion by Justice Neil Gorsuch. John Roberts Chief Justice signed on to most of the Kagan opinion, which made it the court's formal decision. But distance is nonetheless significant.
A major problem with Auer deference is its inconsistency with the Administrative Procedure Act, which says that courts should determine the meaning of statutes and regulations. Deferring to an agency's interpretation would seem to violate that directive. But Justice Kagan argues that it may still be appropriate if, after using all the standard tools of interpretation, it cannot resolve an ambiguity. "Only when that legal toolkit is empty and the interpretive question has no single right answer to a judge conclude that it is" more [one] of policy than of law. "" If the issue is policy and not law, she reasons, judge should defer to an agency's expertise ̵
If lower courts take justice Kagan's opinion seriously, the result will be a limited reference rule that significantly reduces the power of administrative agencies to interpret their rules. . But that wasn't enough for Justice Gorsuch
He argued that anyone who appears before a federal court is entitled to a fair and unbiased hearing, as well as the court's best judgment about the meaning of the statute that authorized the contested rule . In his view, Auer deference — even under Justice Kagan's more restrictive formulation — puts the government's thumb on the scale. If ambiguity is not resolved in the regulation's language, then goes to the agency, as long as its determination is "reasonable."
A reasonable reading, however, may not be the same as the court's best reading of what a statute or regulation says. "After all," Justice Gorsuch writes, "if the court finds that the agency's reading is the best one, Auer does no real work; the doctrine matters only when a court would conclude that the agency's interpretation is not the best or fairest reading of the regulation ”but is reasonable as a matter of policy. Yet the APA says reviewing courts should "decide all relevant questions of law" and "set aside agency action. . . found to be. . . not in accordance with law. ”
In addition, Justice Gorsuch wrote, the Constitution creates a separation of powers among Congress, which makes the laws; the executive, which enforces the laws; and the judiciary, which, as Chief Justice John Marshall said in Marbury v. Madison (1803), has "the province and duty. . . to say what the law is. ”A requirement that the judiciary applies to the executive's interpretation of law may not be consistent with this separation.
Finally, there is the rule of law. Justice Kagan's formulation suggests that when it comes to resolving an ambiguity in a rule, it is an effect faced with a question of administrative policy. The court should defer, Justice Kagan argues, because policy is different from law, and beyond the court's expertise. But Justice Gorsuch argued that administrative rules and regulations are no longer binding on the public than laws, and the meaning of a law or regulation is not necessarily in line with the agency's preferred policies. "We are governed," Justice Gorsuch argued, "not by the shifting whims of politicians and bureaucrats, but by written laws whose meaning is fixed and ascertainable." Thus, the argument between Justices Kagan and Gorsuch raises in stark form the age-old argument about whether the judiciary should determine policy in the guise of interpreting the law, or the executive should determine what the laws actually mean in the guise of its dominion over policy.
Chevron v. Natural Resources Defense Council (1984), in which the justices directed lower courts to agencies' views when a statute itself is ambiguous. Chevron deference is much bigger and more important than Auer deference, but it is notable that in his competition in Kisor the Chief Justice —Who earlier cases have questioned the validity of Chevron —market that “I do not regard the court's decision today to touch upon” Chevron .
deference test reformulated by Justice Kagan, it will likely return to the high court for review. Despite Chief Justice Roberts's view that Auer and Chevron are not linked, it seems that the fate of both doctrines will be determined by his view of how the judiciary should go into deferring to executive interpretations of ambiguous laws and rules.
Mr. Wallison is a senior fellow at the American Enterprise Institute and author of "Judicial Fortitude: The Last Chance to Rein In the Administrative State."