Supreme Court

Neil Gorsuch and Stephen Breyer Butt Heads Over Judicial Deference to Federal Agencies

Understanding what's at stake in the important case of Kisor v. Wilkie.


What is the proper role of a federal judge when it comes to reviewing the actions of a federal regulatory agency? Should the judge defer to the ostensible expertise of that agency and its staff, and therefore generally respect the agency's preferred interpretation of its own regulations? Or should the judge play a more active role, stepping in to prevent the agency from defining the scope of its own regulatory authority?

These are not academic questions. They are at the heart of a major case currently pending before the U.S. Supreme Court.

The case is Kisor v. Wilkie. James L. Kisor is a former Marine and a combat veteran of the Vietnam War. In 1982 he applied to the Department of Veterans Affairs (VA) seeking compensation for service-related post-traumatic stress disorder. His claim was denied. In 2006 he asked the VA to reconsider his claim, this time taking his combat history record and other related documents into account, citing a VA regulation which says that cases such as his may be reconsidered "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim."

This time the VA granted his claim, authorizing the payment of compensation starting that year. But Kisor objected to that timetable, arguing that his compensation should apply retroactively, beginning when his original claim was wrongly denied back in 1982. The VA objected to that, arguing that the new records it took into consideration did not meet the agency's definition of "relevant" and therefore did not support retroactive payment.

It was around this point that the federal courts entered the picture. Kisor filed suit and, in 2017, the U.S. Court of Appeals for the Federal Circuit ruled against him, citing a pair of Supreme Court precedents which together tip the scales in favor of an agency's interpretation of that agency's rules. "At the heart of this appeal is Mr. Kisor's challenge to the VA's interpretation of the term 'relevant,'" the Federal Circuit observed. Unfortunately for Kisor, the Supreme Court has instructed that, "as a general rule, we defer to an agency's interpretation of its own regulation."

The SCOTUS precedents in question are Bowles v. Seminole Rock & Sand Co. (1945), which said that "the ultimate criterion is the administrative interpretation, which becomes controlling weight unless it is plainly erroneous or inconsistent with the regulation," and Auer v. Robbins (1997), which, drawing on Seminole Rock, held that an agency's interpretation of its own regulations is "controlling unless plainly erroneous or inconsistent with the regulations being interpreted."

Kisor and his lawyers then appealed to the Supreme Court, asking for both Seminole Rock and Auer to be overruled.

When the Court heard oral arguments in March, the justice who seemed most hostile to Kisor's position was Stephen Breyer, who said that it "sounds like the greatest judicial power grab since Marbury v. Madison." Why, Breyer demanded, should unelected federal judges get to substitute their views for those of the bureaucrats and experts who staff federal agencies?

"Agencies aren't very democratic," Breyer conceded, "but there is some responsibility." For example, the heads of those agencies are appointed by the president. However, there is "one group of people who are still less democratic, and they're called judges." And if "you believe that the best solution—where there's real ambiguity, and you just don't know, the best solution is, in our country, a democratic solution," Breyer said, "well, maybe the agency is the institution that's closer to it."

A short while later, Justice Neil Gorsuch offered a different perspective on the connection between democracy and judicial deference. One benefit of the courts imposing limits on agency discretion, Gorsuch argued, such as making an agency complete a public notice and comment process before it adopts a new rule, is that "people will know prospectively what rules govern them and not be sideswiped later by a bureaucracy."

"I'm not sure how" judicial deference to an agency's interpretation of its own rules "serves democratic processes or the separation of powers, as opposed to having an independent judge," Gorsuch observed. In fact, he argued, knowing that "you're going to have an independent judge decide what the law is in your case … seems to me a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran, who may not be the most popular or able to capture an agency the way many regulated entities can today."

In other words, is the public better served when the courts allow federal agencies broad leeway to maneuver, as Breyer maintained, or is the public better served when the courts strictly supervise the actions of those agencies, as Gorsuch maintained?

With a decision in Kisor v. Wilkie expected by the end of June, we should get the Supreme Court's answer soon enough.

NEXT: Justin Amash Isn't Just Rebelling Against Trump. He's Fighting the Two-Party System.

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  1. Or should the judge play a more active role, stepping in to prevent the agency from defining the scope of its own regulatory authority?


    1. The courts should have jurisdiction over non-constitutional grievances?

      1. Do you mean the existence of the federal agencies are in and of themselves unconstitutional?

        1. No, I mean it might be dangerous to let courts dictate the actions of federal agencies because judges, like politicians, have a tendency towards activism.

          1. Well, everyone has a potential for corruption, but if we at least accept that judges are supposed to restrain the federal government to its core, constitutional role, even if that squeaks ever larger, at least a third party has some oversight which at least gives a nod of checks and balances. The idea that un-elected bureaucrats can just decide what the scope of their mission on a day-to-day basis seems wrong on its face.

            1. The idea that un-elected bureaucrats can just decide what the scope of their mission on a day-to-day basis seems wrong on its face.

              ^ This. It’s not clear to me why Breyer decides that un-elected bureaucrats are better positioned to make calls on constitutionality than un-elected judges, especially when said bureaucrats are making calls regarding the scope of their own authority. As you say, it just seems wrong on its face.

              I think the principle is that this is not a checks-and-balances case of two branches of government struggling over the scope of their powers. It’s individuals bringing complaints against government agencies that need to be adjudicated by a third party. If you wrong me and I file a complaint against you, there’s a reason you’re not the one who makes the determination. Same thing here – the judge is as neutral a third party as we can hope to get to resolve actual harms, and certainly not the agency who caused the actual harm.

              1. It’s individuals bringing complaints against government agencies that need to be adjudicated by a third party.

                Exactly. I’d go further and say that regulations that can’t be easily interpreted clearly in plain language should be ruled null and void by the judiciary. These bureaucrats often make language so vague that it really has no meaning, and can be changed capriciously by the very bureaucrats who write and enforce the regulations.

                If a judge can’t look at a regulation and make sense of it, how can the common man ever be expected to know what the rules are, let alone follow them?

                1. The executive agencies shouldn’t enact any regulations. All regulations should be sent to congress as a package, and Congress should then vote up or down on them. That’s how executive agencies could continue to exist but still be accountable.

              2. It’s nuts. Congress somehow passed legislation creating a combined Congress and Judiciary? And all its members have civil service protections? How is that Constitutional? How is it desirable?

              3. “especially when said bureaucrats are making calls regarding the scope of their own authority.”

                I like that point. I don’t want to be ruled by judges or bureaucrats, but at least with judges ruling *on* bureaucrats you get some separation of powers.

              4. ” It’s not clear to me why Breyer decides that un-elected bureaucrats are better positioned to make calls on constitutionality than un-elected judges”

                Because Breyer is all in on huge government.

              5. I agree adjudication by a third party is a good idea, but who adjudicates when you disagree with the Supreme Court?

                1. who adjudicates when you disagree with the Supreme Court?

                  The Supreme Court can be overruled by federal statute or Constitutional amendment, so the ultimate authority is in the hands of elected representatives.

          2. Do you honestly believe that federal agencies are NOT activist and bias? Governmental agencies are antagonistic to the general public.

        2. Possibly.

      2. The courts do have jurisdiction over interpretation of any law. That’s what courts are for. The Supreme Court is in no way limited only to judging constitutional matters.
        Yes, courts can be corrupted and activist too, but I’d say it’s still better than an agency making judgments about its own interpretations of the laws and the rules they get to make up under the law without any check on their authority.

        1. Yep, some judges are SJW’s too, but they never make it to the Bigs. Bureaucrats are by far the biggest threat to individual liberty out there and people are finally figuring that out. Nut cases like Mazie come and go, but like diamonds fucking bullshit o’ crats are forever.

      3. This article is really poorly written.

        There is a Board of Veterans Appeals – which is part of the VA and thus has expertise but not independence. There is a Court of Veterans Claims – which is not part of the VA (so independent), and has expertise but is an Art1 court (fully constitutional) not an Art3 court and hence technically not part of the judiciary either. Both of them have ruled in this case – but Kisor has now appealed to the Art 3 system

        IDK what the actual disagreement here is re Breyer and Gorsuch. Is it that the SC itself should defer/not to the expertise of the CoVC? Seems perfectly intelligent to me.

        Or that the CoVC should defer to the expertise of VA cuz the SC/Art3 judiciary has created generic precedent to defer to Art1/Art2 branches on their own internal opns? Seems like serious judicial overreach on the part of the SC but if this is the problem then the problem is that the legislation which created the CoVC is not allowing it to be independent if it is being required to follow Art 3 case law of deference.

  2. Didn’t we already have a case on the FCC where I think Scalia said that an institution can’t just be a “wide roving agency doing good works” or some such thing?

    If judges can’t restrain the scope of an unelected bureaucracy, then who can?

    1. Breyer apparently thinks that the voters are best positioned to restrain unelected bureaucrats.

      1. His argument was that the President gets elected and theoretically can hire and fire them.

        Of course, that’s just not true. I wish it were, but it’s not. Civil service rules made their employ largely untouchable by the President.

        Term limits for all federal employees but military.

  3. The Executive Branch is full of incompetent bureaucrats.

    When they fail or refuse to follow the rules Congress sets or rules set by the Executive Branch, there should absolutely be judicial review.

    1. Not just incompetent, but corrupt.

      Government of the government, by the government, and for the government.

    2. The judiciary needs to stand against the Iron Law of Bureaucracy. Over time any given bureaucracy will prefer to increase its own power and improve its own station rather than meet its goals and mission. If we do not allow judicial oversight of the unelected bureaucracies that make so many of our rules they will simply increase their power over time, increasing the rules they can enforce and how strictly they can enforce any recompense they are required to pay.

  4. Neil Gorsuch and Stephen Breyer Butt Heads Over Judicial Deference to Federal Agencies

  5. There is a more logip al argument for legislative deference than there is for for deference to executive agencies interpreting their own enabling legislation. The legislature is directly elected and only has to follow constitutional restrictions. Agencies have the follow legislation and the constitution.

  6. The DEA says smoking marijuana will make you mad and the FDA saying vaping is very bad!
    Nuff said.
    Defer !!!

    1. This. ^^^^^ The 2nd Circuit retained jurisdiction over this very type of dispute, where the plaintiffs are challenging the constitutionality of DEA/FDA regulations concerning marijuana as a Schedule One (no medical value) substance. Washington, Bortell, et. al. vs. Barr should be impacted by Kisor, insofar as whether exhaustion of remedies (administrative petition) prevents judicial review of unlawful administrative rulings. Stay vigilant.

  7. The court could just declare it a tax and be done with it.

  8. That’s a tough call as neither is a good solution. Judicial overreach is a problem but so is abuse by government agencies. Congress should be the one keeping the agencies in check but it opted (unconstitutionally) to delegate its powers to agencies which is why you have government agencies enacting outlandish rules/regulations.

    Perhaps the answer is to enable over sight by the Supreme Court but which is limited to saying Congress has to deal with the issue and can not defer it back to the agency.

    1. This. They should rule that if Congress hasn’t actually voted on any regulations then it is not law. I just don’t know how they do that without causing chaos (perhaps there is a legal mechanism to do this without every law in the last 100 years being thrown out, without care and consideration). But it needs to be done and sooner rather then later because the problem only grows. They should overturn J. W. Hampton, Jr. & Co. v. United States.

      1. “without every law in the last 100 years being thrown out, without care and consideration”

        I don’t get why you consider that a concern. It would give our now full time legislature (it was only part time at the founding) something useful to do for the next couple of decades.

    2. Judicial overreach is a problem

      Not with respect to checking executive overreach. More like judicial reach around.

    3. Judicial overreach is a problem

      In theory, I suppose, but we’ve suffered 200 years of judicial underreach. That’s why our liberty is now buried under reams of unconstitutional laws and regulations. We would be much better off with courts not so reluctant to save our rights from democracy.

    4. Arbeus concurs, Joining with BCC and Gorsuch.

  9. Aside from the fact that the original Administrative Procedures Act of 1946 should be struck down as unconstitutional (good luck with that), executive branch agencies are not truly run by the President’s appointed heads. Oh they sign off on rule making, but the real cost isn’t in the public rule making. It is in the thousands of administrative decisions made by career bureaucrats every day.
    In fact there is absolutely no “democratic” process when it comes to decisions by regulatory bodies.

  10. 1) Neil Gorsuch and Stephen Breyer Butt Heads ??? This was pretty much to be expected, wasn’t it?

    2) It strikes me as a bit odd that Breyer of all persons is worried about judicial overreach given his long history as an anchor of the “progressive”, “living Constitution” end of the bench.

    2a) Referring to Marbury v. Madison as a “judicial power grab” may be accurate, but it has also been accepted as a foundational case supporting the principle of checks and balances / separation of powers.

    1. Only a complete fucking tool could consider that case a “judicial power grab”. I bet Tony hate’s it.

    2. Breyer just suddenly realized that the court no longer has a “progressive” majority, and if Trump stays in office longer than Ginsburg, may not have one for a long time. So all that power the court arrogated to itself when the “liberals” dominated it is now a problem to be pruned back.

      The real split in the court has never been activist vs restrained, nor liberal vs conservative, but honestly consistent vs deciding each case by the consequences. The left wing has always been consequentialist, but even Scalia turned consequentialist when it was his beloved hippy-persecuting marijuana laws at stake…

  11. since Congress doesn’t Give a rats ass about overseeing agencies it has proclaimed important to our care, someone must. And having been a Government employee for a very short time I know the power structures LOVE to maintain control – absolute control. Screw the entrenched bureaucrats. And screw Breyer. Sounds like Maybe he wants to overturn Marbury?

    1. “Sounds like Maybe he wants to overturn Marbury?”

      Of course he does, at least as long as the conservatives have a majority on the court.

  12. “Why, Breyer demanded, should unelected federal judges get to substitute their views for those of the bureaucrats and experts who staff federal agencies?”

    Er-um, maybe because the Constitution established the judicial branch as a check and balance against overreach by the legislative and executive branches? And because an executive branch agency arbitrarily “interpreting” its own regulations howsoever it chooses, without the need to explain itself or even be bound by its earlier interpretations, is exactly the type of overreaching the Founders were concerned about?

    I have seen this first hand. I once handled an appeal before the Second Circuit from a federal agency decision. The agency in my case had interpreted one of its own regulations in manner directly, 180 degrees contrary to an interpretation it had successfully asserted in an earlier case before a different circuit. I cited the earlier case and argued that it was arbitrary and capricious for the agency to do a complete, unexplained flip-flop. The agency offered no explanation at all for its inconsistent positions. The Second Circuit’s response? “We can’t second-guess the agency. They’re the experts. If they say you violated the regulation in this case, we don’t care what they said before.” This is the type of logic Breyer supports.

      1. To my ignorant half self: estoppel only applies between the same parties. It would be nice if the parties were viewed as United States vs The People, and so everyone benefits from estoppel against the government, but individuals are only bound by themselves, but that’s not how it works.

    1. Agencies arbitrarily interpreting their own regulations is a system that functions pretty much like late colonial Writs of Assistance.

      Our local conservation commission uses the same tactics to basically sieze land (you can’t use it as you want, but you still pay taxes on it, and you can’t sell it because then your lot would fall below the zoning requirements) by blatantly interpreting the reg in two different (contradictory) ways in the same case – I’ve seen it first hand.

      It’s not just a Progressive disease, rather a powertrip that every one seems to fall victim to sooner or later given the chance.

  13. Timothy Sandefur (owns Ayn Rand blow up doll) and Kermit Roosevelt (communist) debated this never-ending topic at The National Constitution Center about 4 years ago;

    1. Dang, has even the Republican branch of the Roosevelts turned commie now? Not that Teddy R wasn’t a raging Progressive…

  14. ” should the judge play a more active role, stepping in to prevent the agency from defining the scope of its own regulatory authority?”

    The best bet is to have the two have a duel at dawn to determine what is right.
    The judge will determine if it will be with swords, spears and axes.
    This way, the gods will determine who is right and who is wrong.
    It sure beats using logic, legal precedence and common sense any day.

    1. Nets and tridents are pretty cool, too.

  15. I have a great solution. Just get rid of these fucking agencies altogether?

    1. Then the stop signs?

      1. Right Arty, cuz we don’t know how to behave ourselves or run our own lives without gubmint experts pushing us around…

  16. Agencies write the regulations that govern them.

    And they publish vague regulations designed to minimize complaints up front and then maximize power on the back end.

    It would seem obvious that a disinterested third party should determine whether the actions of the agency are consistent with the legislation and due process.

  17. Hayek wrote a lot about something similar (I think) in Constitution of Liberty. His example was how something called Rechtsstaat developed in Germany during the classical liberal era. Where there is a purely administrative judiciary – separate from the executive (so not an Article 2 court) and from the appellate ‘general’ Article 3 judiciary. The Anglo-American system can’t really fit that sort of court into its common-law system because the cases that come before the administrative court aren’t common law cases. They are specific complaints about bureaucrats/agencies.

    Another article that gets at the same idea – now apparently called Bundesverwaltungsgericht. But man – that combo of legal weeds and the German language is almost designed to maximize incomprehensibilityveralldawordscombinedinastring.

  18. It all comes down to how the Legislative branch ceded it’s own power to the Executive bureaucratic monstrosity. An agencies regulation is nothing more than a bureaucratic law. SCOTUS was designed to judge laws. Just because the Legislative branch decided to cede their power, does not mean SCOTUS should cede theirs.

    1. SCOTUS was designed to decide cases and controversies, not to “judge laws.” In cases where claims of law compete, SCOTUS decides what the law is.

  19. Maybe Congress should stop writing stupid laws that say stuff like, I create this agency and empower it to do what it needs to do to do what it needs to do. Basically, bureaucratic blank checks. I really wish I was making the language used up to. It sounds like nonsense. Additionally, I like Gorsuch. Just need 8 more like him. Justices should be inherently small government. If not how are they a check against anything, more of a rubber stamp.

  20. […] Reason, Damon Root writes that in Kisor v. Wilkie, in which the justices are reconsidering precedents that […]

  21. Congress needs to do its actual job – legislation. Administrative fiat is an anathema to the Common Law.

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