U.S. Supreme Court

Roberts mostly joins liberal justices as SCOTUS refuses to overturn Auer decision on agency power

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The U.S. Supreme Court has refused to overturn a decision that gives power to federal agencies to interpret their own regulations.

In a decision by Justice Elena Kagan on Wednesday, the Supreme Court refused to overturn the 1997 decision that established so-called Auer deference. Kagan emphasized, however, that the principle has its limits.

Chief Justice John G. Roberts Jr. supplied a critical fifth vote for sections of Kagan’s opinion upholding precedent and outlining limits on Auer deference. Joining Kagan’s opinion in full were Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Auer deference was established in the 1997 decision Auer v. Robbins, which held that courts should defer to an agency’s reasonable interpretation of its own ambiguous regulation.

“Auer deference retains an important role in construing agency regulations,” Kagan wrote. “But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations.”

Justice Neil M. Gorsuch said Kagan’s opinion had imposed so many limits on Auer deference that “the doctrine emerges maimed and enfeebled—in truth, zombified.” He and three conservative justices who joined his opinion all or in part would have overturned the Auer decision altogether.

The petitioner in the case before the court is James Kisor, a Marine veteran seeking disability benefits for his post-traumatic stress disorder. The Department of Veterans Affairs agreed that Kisor has PTSD, but it refused to grant retroactive benefits based on its interpretation of the term relevant in agency regulations on late appeals of denied claims.

The case returns to a federal appeals court for a reexamination of whether Auer deference applies. Justices who did not join Kagan’s opinion concurred in the judgment because it reversed the U.S. Court of Appeals for the Federal Circuit.

The majority opinion said these limits apply to Auer deference:

• A court shouldn’t apply Auer deference unless a regulation is genuinely ambiguous.

• A court must exhaust traditional tools of construction before concluding a rule is genuinely ambiguous. “Only when that legal toolkit is empty and the interpretive question still has no single right answer” can a judge conclude a regulation is ambiguous, Kagan said.

• If there is a genuine ambiguity, the agency interpretation must be reasonable.

• A court should “make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight,” Kagan said. The interpretation must be the official position of the agency, and the interpretation must implicate the agency’s substantive expertise.

Business groups and conservatives have argued that Auer deference gave too much power to agencies.

Some saw the Supreme Court’s decision to accept Kisor’s case as an indication it will eventually review Chevron deference. That principle, established in the 1984 decision Chevron USA v. Natural Resources Defense Council, says federal courts should defer to reasonable federal agency views when Congress passes ambiguous laws.

Roberts and four other conservative justices, in separate opinions, made clear that they did not think the majority ruling upholding Auer foreclosed a review of Chevron deference.

Gorsuch went the furthest, writing in footnote 114 that there are “serious questions” about the Chevron doctrine’s constitutionality and its compatibility with the Administrative Procedure Act. Justices Clarence Thomas and Brett M. Kavanaugh joined that section of Gorsuch’s dissent.

The case is Kisor v. Wilkie.

Hat tip to SCOTUSblog for its early coverage of the decision.

Related articles:

ABAJournal.com: “Auer deference precedent targeted by business groups may be overturned by SCOTUS”

ABAJournal.com: “Chemerinsky: What SCOTUS rulings are we still waiting for?”

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