A major conflict is now underway on the U.S. Supreme Court between Justices Elena Kagan and Neil Gorsuch over the issue of judicial deference to the administrative state.
Their division centers in part on whether an important Supreme Court precedent, Auer v. Robbins (1997), should be overruled. In Auer, the Court held that when an "ambiguous" regulation promulgated by a federal agency is challenged in court, the judge hearing the case should defer to the agency's preferred interpretation of its own regulation. That interpretation, the Court held in Auer, is "controlling unless plainly erroneous or inconsistent with the regulations being interpreted."
In June, the Court decided a case that asked the justices to end Auer once and for all. Writing for a narrow majority in Kisor v. Wilkie, Justice Elena Kagan saved the precedent from total destruction. "Auer deference retains an important role in construing agency regulations," Kagan wrote. "When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision."
Critics of Auer say the doctrine empowers bureaucrats at the expense of judges. Kagan acknowledged those critics but insisted that the doctrine is not an abdication. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference." According to Kagan, Auer "is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear."
Gorsuch disagreed. "It should have been easy for the Court to say goodbye to Auer," he wrote in Kisor. Not only does Auer require judges "to accept an executive agency's interpretation of its own regulations even when that interpretation doesn't represent the best and fairest reading," but the precedent also "creates a 'systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'"
Federal judges routinely "reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution," Gorsuch pointed out. "Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency's interpretation as controlling even when it is 'not…the best one.'"
When the next case testing the bounds of the administrative state reaches the Supreme Court, Kagan and Gorsuch will be the ones drawing the battle lines.