Uphold precedent

Justices uphold precedent backing government regulators

By JOSH GERSTEIN

The legal drive to rein in the power of federal regulators hit an unexpected stumbling block on Wednesday as the Supreme Court narrowly rejected an opportunity to overturn a controversial legal precedent under which courts let federal agencies interpret their own regulations.

Conservatives have been railing and battling against that principle, known as Auer deference, for years, but in the new, late-term ruling, Chief Justice John Roberts split with his Republican-appointed colleagues by refusing to strike down the longstanding legal rule.

Roberts did not join all of Justice Elena Kagan’s opinion upholding Auer, but he joined enough of it to give the doctrine a reprieve.

However, Roberts’ conservative colleagues signaled that they believed that the approach — which critics say gives the so-called administrative state unchecked power — was effectively gutted by the new decision.

The case the court ruled on Wednesday, Kisor v. Wilkie, involved a challenge to the Department of Veterans Affairs’ partial denial of retroactive benefits to a Vietnam War veteran, James Kisor. An appeals court deferred to the VA’s decision, but after the high court ruling, Kisor’s claim will be sent back down for another review.

Kagan’s opinion said the need to defer to agencies in interpreting their own rules remained, given the fast-moving nature of science and technology. And she argued that Congress typically wanted it that way.

“Agencies … have political accountability, because they are subject to the supervision of the President, who in turn answers to the public,” Kagan wrote, doing her best to appeal to values often cited by conservatives. “It is because of those features that Congress, when first enacting a statute, assigns rulemaking power to an agency and this authorizes it to fill out the statutory scheme. And so too, when issues demanding new policy come up within that scheme, Congress presumably wants the same agency, rather than any court, to take the laboring oar.”

Justice Neil Gorsuch, a longtime critic of Auer deference, expressed sharp disappointment in the high court’s decision to leave it on the books.

“It should have been easy for the Court to say goodbye to Auer,” Gorsuch wrote, in an opinion largely joined by all the court’s conservatives except Roberts. “A legion of academics, lower court judges and Members of this Court … has called on us to abandon Auer. Yet today a bare majority flinches, and Auer lives on.”

Roberts wrote separately to say he saw much commonality between Kagan’s opinion, which emphasized the limits on agencies even when granting them deference, and the views of Gorsuch and others who wanted to dismantle Auer altogether.

“The distance between the majority and Justice Gorsuch is not as great as it may initially appear,” the chief justice wrote. “The majority catalogs the prerequisites for, and limitations on, Auer deference: The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise.”

Gorsuch seemed unassuaged by that explanation, however, maintaining that Auer deference remained an affront to the role of judges and to the public’s right to know — in advance — what legal standard it is bound by.

“The Court cannot muster even five votes to say that Auer is lawful or wise,” the Trump appointee wrote. “The majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that The Chief Justice 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.”

In another rhetorical flourish, Gorsuch said the court had reduced Auer “to the role of a tin god, officious, but ultimately powerless.”

The court’s other Trump appointee, Justice Brett Kavanaugh, joined those who would have formally overruled Auer (decided in 1997) and a preceding line of cases that dates back decades. But Kavanaugh said he agreed with Roberts that, despite the pointed language in the Kagan and Gorsuch opinions, the two camps were closer than some might think.

“Formally rejecting Auer would have been a more direct approach,” Kavanaugh said, while saying that a portion of the majority opinion “should lead in most cases to the same general destination.”

Kavanaugh seemed to part with Gorsuch by saying that in the wake of Wednesday’s ruling judges were likely to understand when they should and shouldn’t defer to federal agencies.

“Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here,” wrote Kavanaugh, whose ticket-buying generosity to take friends to Washington Nationals games briefly added controversy to his confirmation last year.

While closely watched by regulated industries, environmentalists and others, the Auer fight was a triple-A game compared with the major-league battle brewing over a related doctrine known as Chevron deference, under which courts typically defer to agencies’ interpretation of an ambiguous federal law.

References to Chevron appear in the various opinions issued by the court on Wednesday, with Gorsuch saying there were “serious questions” about Chevron’s legality and constitutionality.

Roberts and Kavanaugh, however, went out of their way to emphasize that they were leaving that question for another day.