Free Lunch Episode 61 – Kisor v. Wilkie

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This morning the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., and Auer v. Robbins. Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.

Karen Harned and Stephen Vaden discuss that morning’s highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions.

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Stephen A. Vaden
Stephen Vaden
General Counsel, U.S. Department of Agriculture

Karen Harned
Karen Harned
Executive Director, National Federation of Independent Business Small Business Legal Center


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