The Auer Doctrine Suffers Pyrrhic Victory in Kisor v. Wilkie

Sometimes it ’s possible to lose in name only. Consider, for example,Cato ’s position inKisor v. Wilkie, which the Supreme Court yesterday decided.By a 5 – 4 vote, the Court upheld theAuer doctrine, or binding judicial deference to an agency ’s interpretation of its own regulation. Only four Justices actually validated theAuer doctrine; Chief Justice Roberts provided the fifth vote solely out of respect for precedent. Ina brief supporting the petitioner, Cato had argued that the Court should overturn  Auer, so technically our position lost.Nevertheless, the opinion of the Court “reinforced” and “expanded on” the doctrine’s limits. InPart II.B, Justice Kagan set forth several “markers” to guide lower courts regarding the boundaries ofAuer deference. In practice, these limits gut the doctrine. As rightly observed by Justice Gorsuch,  Auer emerges “maimed and enfeebled.” And becauseAuer deference has been rendered impotent, opponents of the doctrine effectively “won,” even though we officially “lost.”So, how did the Court reduceAuer deference to a “paper tiger”? Justice Kagan set forth three big limitations.The first is a requirement for courts to discern whether the regulatory text is ambiguous. While it might seem obvious that judges should ensure that a legal text is ambiguous before deferring to an agency ’s interpretation, courts routinely skipped any meaningful textual analysis before assuming a deferential posture under theAuer f...

Source: Cato-at-liberty - June 27, 2019 Category: American Health Authors: William Yeatman Source Type: blogs