The Supreme Court stumbles toward doing its job. On Wednesday, the Supreme Court signaled that it was prepared to look more critically at administrative agency’s interpretations of their own rules. In Kisor v. Wilkie, a case involving Department of Veterans Affairs denials of a disability claim, the court placed new limits on a doctrine of judicial deference known as Seminole Rock/Auer. That doctrine held that courts should defer to agency interpretations of their own rules as long as those interpretations are not plainly erroneous or inconsistent with the regulation. Elizabeth Slattery writes on the decision:
Writing for the majority, Justice Elena Kagan took the “plainly erroneous or inconsistent” standard of Seminole Rock and Auer and recast it into a multi-step test instructing lower court judges whether and how to grant deference.
First, using “all the ‘traditional tools’ of construction,” a judge must determine if the applicable regulation is “genuinely ambiguous.” If there is genuine ambiguity, then the judge must consider whether the agency’s interpretation is a reasonable one.
If the agency’s interpretation is reasonable, the judge must next conduct an “independent inquiry” into “whether the character and context of the agency interpretation entitles it to controlling weight.”
This inquiry may include, but is not limited to, factors such as whether the interpretation is the official position of the agency or an ad hoc statement; whether it involves the agency’s substantive expertise; and whether it “reflect[s] the ‘fair and considered judgment’” of the agency rather than a “convenient litigation position” or “post hoc rationalization.”
This new test may prove to be a higher hurdle for administrative agencies to clear than the old “plainly erroneous or inconsistent” standard. Given this transformation, why not simply retire the old doctrine to make way for a new one? […]
In a lengthy concurrence, [Justice Neil] Gorsuch wrote:
The majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that the Chief Justice [who wrote a concurring opinion] claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled—in truth, zombified.
[…]
Seminole Rock and Auer give the government a benefit that no court would ever afford a private party: the ability to decide what a vague or ambiguous legal rule means. By so doing, “deference” becomes a bias in favor of the most powerful litigant—the federal government.
The time has come for the court to stop “making up excuses for judges to abdicate their job of interpreting the law,” Gorsuch argued, and allow judges to give their “best independent judgment of the law’s meaning.”
Instead, judges must now figure out how to apply Kagan’s new multi-factor test—which Gorsuch predicts will cause “more uncertainty and much litigation.”
[Elizabeth Slattery, “New Supreme Court Ruling May Start Checking Power of Federal Bureaucrats,” The Daily Signal, June 27]
