February 4, 2019 1:11PM # Does Kisor Really Threaten the Foundations of Administrative Law? By [William Yeatman](https://www.cato.org/people/william-yeatman) --- SHARE As I describe [alongside Ilya and Trevor](https://www.cato.org/blog/courts-must-reassert-control-over-administrative-agencies) in our recent filing, in *[Kisor v. Wilkie](https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/)*, the Supreme Court has agreed to revisit the *[Auer v. Robbins](https://scholar.google.com/scholar_case?case=10703230932343258283&q=auer+v+robbins&hl=en&as_sdt=20003)* doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations. Setting aside the arguments for overturning *Auer*, the purpose of this post is to address a couple recent arguments in favor of retaining *Auer*. Every day last week, the invaluable *[SCOTUSblog](https://www.scotusblog.com/)* published a post in a [symposium](https://www.scotusblog.com/category/special-features/symposium-before-the-oral-argument-in-kisor-v-wilkie/) about *Kisor*. For my part, I was struck by two points repeated by some or all of the proponents of *Auer* deference. The first eye-catching claim is that *Kisor* is a bad vehicle for addressing many of the complaints raised against *Auer* deference. [Explains Prof. Gillian Metzger](https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-troubling-grant-in-kisor/): > Central to the attack on *Auer* are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. *Auer* critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in *Kisor* itself. **The regulatory interpretation at issue in *Kisor* was reached through formal adjudication, with ample process** and two levels of well-justified administrative decisions. [And here’s Prof. Adrian Vermeule](https://www.scotusblog.com/2019/01/symposium-tampering-with-the-structure-of-administrative-law/) making this same point: > Petitioners in cases like *Kisor* typically want to focus not on (formal) adjudication but on interpretation through guidances, which they take to be the best case for their critique of Auer. It is thus extremely awkward for the petitioners in *Kisor* that, in their own case, **the agency interpretation was instituted by means of a relatively formal adjudication, not a guidance**. This means that the principle of agency procedural discretion over the choice between rulemaking and adjudication is at maximum force. I highlighted the identical problem with their argument, which is their mischaracterization of the administrative process by which the agency issued its interpretation in *Kisor*. Both Metzger and Vermeule claim that the regulatory interpretation at issue in *Kisor* resulted from a formal adjudication, but that’s an incomplete description. The professors suggest that the regulatory interpretation resulted from a textbook-style adjudication under the Administrative Procedure Act. Under this process, a claims officer rules against the applicant on the basis of a regulatory interpretation; then the parties dispute the interpretation before the administrative tribunal; and, finally, the tribunal would resolve the interpretation in a final order. Were this what actually happened in the *Kisor* controversy, then the professors would have a valid point. But that’s not what happened. Instead, the Department of Veterans Affairs issued its regulatory interpretation completely unprompted (not after an adversarial process). To be sure, the agency could have issued its regulatory interpretation when it last amended its rules, in 2006. But the agency chose to leave the regulation vague. And because the agency’s subsequent interpretation escaped any procedural safeguard whatsoever from the regulatory agency, *Kisor* is, in fact, an excellent vehicle for reexamining *Auer*. The second striking commonality among *Auer* proponents at *SCOTUSblog* is their excessive speculation. Specifically, each scholar voiced the alarming possibility that overturning *Auer* would rock the foundations of administrative law. Per[ Vermeule](https://www.scotusblog.com/2019/01/symposium-tampering-with-the-structure-of-administrative-law/), “overruling *Auer* would cause ramifying, unpredictable consequences throughout the structure of administrative law.” [Metzger](https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-troubling-grant-in-kisor/) echoes the same point: “The radical import of these attacks is not limited to overturning *Auer*, but would call into question the core legal foundations of the administrative state.” For that matter, [here’s Brianne Gorod](https://www.scotusblog.com/2019/01/symposium-why-kisor-is-a-case-to-watch/), chief counsel at the Constitutional Accountability Center (with whom Cato joins on briefs in other areas of law), writing that “these attacks on *Auer* are part of a broader attack on the administrative state.” On reading these claims, you might be having the same reaction that I had: How on earth did we go from *Kisor* to endangering “[the core legal foundations of the administrative state](https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-troubling-grant-in-kisor/)”? Respectfully, I do not believe that these supposed ripple effects withstand scrutiny. For example, Vermeule [argues](https://www.scotusblog.com/2019/01/symposium-tampering-with-the-structure-of-administrative-law/) that *Kisor* threatens the venerable *[Chenery II](https://scholar.google.com/scholar_case?case=2539582695600411733&q=chenery+v+sec+corp+1947&hl=en&as_sdt=20003)* doctrine (which stands for the principle that, unless Congress directs otherwise, a regulatory agency has the discretion to render policy either through legislative rules or formal adjudication): > For the Supreme Court to overrule *Auer* in this setting would raise grave questions about \[*Chenery* II\]. It is not at all difficult to imagine that lower courts, wishing to go much further than the court’s majority, would extrapolate the supposed principles of the decision to attempt to undermine *Chenery* II as well. Vermeule’s thinking here is somewhat opaque, but I engaged him on Twitter, and he explained that his claim involves two inferences piled on top of one another. First, he posits that agencies, when faced with the *Chenery* II principle in a post-*Auer* world, would undertake more adjudications and fewer rulemakings. This is a fair point; one that was made in [an excellent article](https://georgetownlawjournal.org/articles/230/beyond-seminole-rock/pdf) by Prof. Aaron Nielson, which Vermeule directly referenced in our conversation on social media. But Vermeule goes one step further. He speculates that the agencies’ response to *Kisor*, in turn, would engender a response from the lower courts that would “undermine” *Chenery* II. The problem is that his argument is too attenuated. First, he infers how agencies would respond to the Supreme Court overturning the *Auer* doctrine in *Kisor*; then, based on this assumption, Vermeule further speculates how courts would respond to the hypothetical agency response. An equally improbable connection is drawn between rejecting the *Auer* doctrine in *Kisor* and upsetting judicial deference to an agency’s statutory interpretations, known as the *[Chevron](https://scholar.google.com/scholar_case?case=14437597860792759765&q=chevron+v+nrdc&hl=en&as_sdt=20003)* doctrine. On this subject, Vermeule [avers](https://www.scotusblog.com/2019/01/symposium-tampering-with-the-structure-of-administrative-law/): > \[T\]his is largely uncharted territory, which implies uncertainty and risk for the Supreme Court. Any such exception to *stare decisis* would be ill-defined and highly susceptible to manipulation and expansion in later cases, with unpredictable consequences in a large and indefinite range of other areas. Surely the *stare decisis* force of *Chevron* would be equally affected, for similar reasons…” On the same subject, [here’s Metzger](https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-troubling-grant-in-kisor/): > Efforts to challenge *Auer* deference on statutory grounds, as violating the APA’s instruction that “the reviewing court shall decide all relevant questions of law,” might at first seem less threatening. Even these statutory moves are not easily cabined, however, and would cast doubt on other deference doctrines. The problem with this argument is that *Auer* and *Chevron*, notwithstanding similarities in form, are grounded in distinct legal rationales. As Prof. Jonathan Adler explains in his own *[SCOTUSblog post](https://www.scotusblog.com/2019/01/symposium-government-agencies-shouldnt-get-to-put-a-thumb-on-the-scales/)*: > Some fear that eliminating *Auer* deference could lay the foundation for undoing much of contemporary administrative law … Such concerns are misplaced. Whatever the faults of *Chevron* or other administrative law doctrines, *Auer* can stand or fall on its own … > > > *Chevron* deference is grounded in a theory of delegation … As Chief Justice John Roberts explained in *[King v. Burwell](https://scholar.google.com/scholar_case?case=6576585295128855872&q=king+v+burwell&hl=en&as_sdt=20003)*, *Chevron* “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”… > > > Whereas Congress can be said to have delegated the interpretive authority that underlies *Chevron* deference, neither *Auer* nor *Seminole Rock* even purports to provide an equivalent foundation for a doctrine of deference to agency interpretations of their own regulations. Nor could they, as the interpretive authority at issue in *Auer* cases comes not from ambiguities left by Congress but from ambiguities left by the agencies themselves, and it is nonsensical to say that agencies have delegated interpretive authority to themselves. The upshot is that *Chevron* is immune from *Kisor*, and the proponents of *Auer* have presented no plausible link between the fate of the two cases. To be clear, I admire and respect the prodigious legal talents of Metzger, Vermeule, and Gorod. They are brilliant administrative law scholars and practitioners. But I think they’re reaching in their defense of the *Auer* doctrine in *Kisor*. As I digested these speculative arguments regarding *Kisor*’s putatively dire implications, I recalled Carl Sandburg’s famous quip: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Government and Politics](https://www.cato.org/government-politics), [Regulation](https://www.cato.org/regulatory-studies), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).