Is the Supreme Court’s Job to Defer?

Peter J. Wallison

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 associate justices joined most or all of a concurring opinion by Justice Neil Gorsuch. Chief Justice John Roberts signed on to most of the Kagan opinion, which made it the court’s formal decision. But he also wrote in a concurring opinion that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” That 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 deference may still be appropriate if, after using “all the standard tools of interpretation,” the court cannot resolve an ambiguity. “Only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is ‘more [one] of policy than of law.’ ” If the issue is policy and not law, she reasons, a judge should defer to an agency’s expertise—provided that its interpretation is “reasonable.”

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