As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins 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 published a post in a symposium 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:
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 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, “overruling Auer would cause ramifying, unpredictable consequences throughout the structure of administrative law.” Metzger 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, 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.”