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Volokh Conspiracy

Auer Deference Post-Kisor

The Supreme Court reined in Auer deference. Will lower court get the message?


Auer deference, under which courts are required to defer to reasonable agency interpretations of their own ambiguous regulations, has long been one of the more problematic doctrines within administrative law. This past term, in Kisor v. Wilkie, the Court was asked to overturn Auer, but only four justices were willing to take that step.

The Supreme Court may not have been willing to eliminate Auer deference in Kisor , but it certainly attempted to bring it to heel. Justice Kagan's opinion for the Court claimed to uphold Auer v. Robbins, yet her opinion for the Court emphasized the limits on Auer deference, as it also "compile[d] and further develop[ed]" them. As reformulated in Kisor, Auer deference now requires a context-dependent, five-step analysis in order to determine whether a court must defer to an agency's interpretation of its own regulation.

As Justice Kagan's opinion for the Court makes explicit, Auer deference has a limited role to play in administrative law, and should only be applied in a limited set of circumstances. For starters, the question of Auer deference may only arise if the regulation at issue is truly ambiguous—not merely complicated or technical, but truly ambiguous. As Justice Kagan explained, "a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read." The reviewing court must utilize all of the traditional tools of textual interpretation and can only even consider deference upon concluding the regulation at issue contains "genuine ambiguity" as to the question at hand.

But ambiguity is not enough. The agency's interpretation must constitute a reasonable interpretation of the relevant text, represent the agency's official and authoritative interpretation, be with within the agency's expertise, and reflect the agency's considered judgement with due regard for notice and reliance interests. Auer deference remains to be used "where it applies," Justice Kagan explained, but "it often doesn't."

The upshot of Kisor is that reviewing courts should rely upon Auer deference to resolve cases less often than they have to date. Indeed, this was the result in Kisor itself, where every justice agreed the Federal Circuad been too quick to conclude the applicable VA regulation was ambiguous and that the VA's interpretation merited deference.

The Supreme Court has given us a more "tame" and less "menacing" Auer doctrine.  The question is whether lower courts will get the message. For while Justice Kagan's opinion is clear, the headline result is still that Auer v. Robbins was not overturned and Auer deference is still with us. Some courts make take this as a reason to continue on as before, particularly when the alternative is assuming responsibility for the heavy interpretative lifting.

One of the first courts to consider how Kisor modifies the application of Auer was the Oregon Supreme Court—and the justices split over the question. In Eastern Oregon Mining Association v. Department of Environmental Quality, the court considered the application of the Clean Water Act's permitting requirements to suction dredge mining. A majority of the court concluded Kisor supported its conclusion that the state DEQ's permit was valid under the CWA and applicable regulations.

The court was not unanimous. One justice dissented, arguing that Kisor required the court to look more closely before deferring to a federal agency's interpretation of its own rules. Whether or not the majority reached the correct conclusion on the ultimate question, the dissent makes a persuasive case that the majority failed to heed Justice Kagan's admonition not to rush to deference.

Perhaps the Oregon Supreme Court reached the right bottom line, and perhaps this is a one off. Kisor has scarcely been on the books for a month, so few courts have dug into it. Yet it will be interesting to see whether lower courts heed the message that Auer deference has a far more limited role to play in a post-Kisor world.