U.S. Supreme Court to reconsider judicial deference to agency interpretations of regulations
The U.S. Supreme Court will hear arguments today in a case which has implications for instances where courts are asked to resolve disputes arising from rules issued by federal agencies. The topic is a bit complicated but bear with me.
The court will hear arguments in Kisor v. Wilkie, which involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA). Kisor applied for disability benefits for PTSD he developed during the Vietnam War, and the VA denied his initial disability claim in 1983. In 2006, the agency re-opened his case and awarded him benefits but did not make them retroactive to his initial claim. At issue is the VA’s interpretation of the term "relevant" in one of the regulations under which the agency denied him retroactive benefits
Under a legal principle known as Auer deference, federal courts uphold agency interpretations of ambiguous regulations made by that agency unless they are plainly erroneous or inconsistent. The practice comes from precedents established by two U.S. Supreme Court decisions: Bowles v. Seminole Rock & Sand Co (1945) and Auer v. Robbins (1997).
In the Kisor case, the court will consider whether to overrule those precedents. If Auer deference is curtailed or overruled, courts that review actions by federal agencies would have more power to scrutinize those agencies’ interpretations of regulations.
Law professor Adrian Vermeule is among those who think Auer deference is key to administrative law. He said that the principle “is closely intertwined with the fundamental default principle that agencies are presumed to have broad discretion to choose their own procedures and policymaking instruments free of judicial interference, except when statutes and binding regulations specify otherwise."
Critics of Auer think that overruling or curtailing it will provide greater separation of powers. Louisiana Solicitor General Elizabeth Murrill said, "courts abdicate their most fundamental duty to say what the law is and also destabilize the balance of power embodied in the Constitution when they defer to an agency that issues ambiguous rules and then seeks deference to informal practices or guidance."
Kisor v. Wilkie is the last case that the Supreme Court will hear in its March sitting. It has 13 cases scheduled for its April sitting, which begins April 15. The court is currently scheduled to hear 75 cases this term.
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