As the Court often does, in Kisor v. Willkie, it made a big correction in an important legal area without formally overruling a weak or misapplied precedent. All nine justices agreed that courts need to work harder to ensure that a regulation truly is ambiguous before giving the agency re‐interpreting it any sort of deference.
In other words, the Court limited the number of cases where judges defer to agencies, while setting out standards for evaluating those cases that boil down to “when the agency is correct and brings its expertise to bear, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy‐nilly. That sounds like reining in the administrative state!
At first blush, Justice Neil Gorsuch’s magisterial opinion that concurred only in the judgment (joined by three colleagues), which would’ve thrown out the Auer deference doctrine altogether, reads like a dissent in all but name. But Chief Justice John Roberts (who joined the majority opinion, largely on stare decisis grounds), echoed by Justice Brett Kavanaugh (who joined Gorsuch’s concurrence), shows that in practice the distance between the two isn’t all that great. And this particular case illustrates that point, given that the lower‐court opinion is vacated because all nine justices agree that it didn’t rigorously vet what the agency did.
At bottom, Kavanaugh makes the perfect analogy that sums up the unanimous Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in‐game interpretation of Wrigley’s ground rules.” Administrative agencies are now on notice that it’s not “anything goes” when they decide to rewrite their own rules, that judges will hold their feet to the statutory fire.
In short, while Kisor didn’t overturn Auer, it represents a pretty good start at limiting executive‐agency overreach.
See here for more background and to read Cato’s brief in the case, which was joined by superstar law professors Jonathan Adler, Richard Epstein, and Michael McConnell.
