As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations.

Setting aside the arguments for overturning Auer, the purpose of this post is to address a couple recent arguments in favor of retaining Auer. Every day last week, the invaluable SCOTUSblog published a post in a symposium about Kisor. For my part, I was struck by two points repeated by some or all of the proponents of Auer deference.

The first eye-catching claim is that Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Explains Prof. Gillian Metzger:

Central to the attack on Auer are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. Auer critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in Kisor itself. The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions.

And here’s Prof. Adrian Vermeule making this same point:

Petitioners in cases like Kisor typically want to focus not on (formal) adjudication but on interpretation through guidances, which they take to be the best case for their critique of Auer. It is thus extremely awkward for the petitioners in Kisor that, in their own case, the agency interpretation was instituted by means of a relatively formal adjudication, not a guidance. This means that the principle of agency procedural discretion over the choice between rulemaking and adjudication is at maximum force.

I highlighted the identical problem with their argument, which is their mischaracterization of the administrative process by which the agency issued its interpretation in Kisor. Both Metzger and Vermeule claim that the regulatory interpretation at issue in Kisor resulted from a formal adjudication, but that’s an incomplete description. The professors suggest that the regulatory interpretation resulted from a textbook-style adjudication under the Administrative Procedure Act. Under this process, a claims officer rules against the applicant on the basis of a regulatory interpretation; then the parties dispute the interpretation before the administrative tribunal; and, finally, the tribunal would resolve the interpretation in a final order.

Were this what actually happened in the Kisor controversy, then the professors would have a valid point. But that’s not what happened. Instead, the Department of Veterans Affairs issued its regulatory interpretation completely unprompted (not after an adversarial process). To be sure, the agency could have issued its regulatory interpretation when it last amended its rules, in 2006. But the agency chose to leave the regulation vague. And because the agency’s subsequent interpretation escaped any procedural safeguard whatsoever from the regulatory agency, Kisor is, in fact, an excellent vehicle for reexamining Auer.

The second striking commonality among Auer proponents at SCOTUSblog is their excessive speculation. Specifically, each scholar voiced the alarming possibility that overturning Auer would rock the foundations of administrative law. Per Vermeule, “overruling Auer would cause ramifying, unpredictable consequences throughout the structure of administrative law.” Metzger echoes the same point: “The radical import of these attacks is not limited to overturning Auer, but would call into question the core legal foundations of the administrative state.” For that matter, here’s Brianne Gorod, chief counsel at the Constitutional Accountability Center (with whom Cato joins on briefs in other areas of law), writing that “these attacks on Auer are part of a broader attack on the administrative state.”

On reading these claims, you might be having the same reaction that I had: How on earth did we go from Kisor to endangering “the core legal foundations of the administrative state”? Respectfully, I do not believe that these supposed ripple effects withstand scrutiny.

For example, Vermeule argues that Kisor threatens the venerable Chenery II doctrine (which stands for the principle that, unless Congress directs otherwise, a regulatory agency has the discretion to render policy either through legislative rules or formal adjudication):

For the Supreme Court to overrule Auer in this setting would raise grave questions about [Chenery II]. It is not at all difficult to imagine that lower courts, wishing to go much further than the court’s majority, would extrapolate the supposed principles of the decision to attempt to undermine Chenery II as well.

Vermeule’s thinking here is somewhat opaque, but I engaged him on Twitter, and he explained that his claim involves two inferences piled on top of one another. First, he posits that agencies, when faced with the Chenery II principle in a post-Auer world, would undertake more adjudications and fewer rulemakings. This is a fair point; one that was made in an excellent article by Prof. Aaron Nielson, which Vermeule directly referenced in our conversation on social media. But Vermeule goes one step further. He speculates that the agencies’ response to Kisor, in turn, would engender a response from the lower courts that would “undermine” Chenery II. The problem is that his argument is too attenuated. First, he infers how agencies would respond to the Supreme Court overturning the Auer doctrine in Kisor; then, based on this assumption, Vermeule further speculates how courts would respond to the hypothetical agency response. 

An equally improbable connection is drawn between rejecting the Auer doctrine in Kisor and upsetting judicial deference to an agency’s statutory interpretations, known as the Chevron doctrine. On this subject, Vermeule avers:

[T]his is largely uncharted territory, which implies uncertainty and risk for the Supreme Court. Any such exception to stare decisis would be ill-defined and highly susceptible to manipulation and expansion in later cases, with unpredictable consequences in a large and indefinite range of other areas. Surely the stare decisis force of Chevron would be equally affected, for similar reasons…”

On the same subject, here’s Metzger:

Efforts to challenge Auer deference on statutory grounds, as violating the APA’s instruction that “the reviewing court shall decide all relevant questions of law,” might at first seem less threatening. Even these statutory moves are not easily cabined, however, and would cast doubt on other deference doctrines.

The problem with this argument is that Auer and Chevron, notwithstanding similarities in form, are grounded in distinct legal rationales. As Prof. Jonathan Adler explains in his own SCOTUSblog post:

Some fear that eliminating Auer deference could lay the foundation for undoing much of contemporary administrative law … Such concerns are misplaced. Whatever the faults of Chevron or other administrative law doctrines, Auer can stand or fall on its own …

Chevron deference is grounded in a theory of delegation … As Chief Justice John Roberts explained in King v. Burwell, Chevron “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”…

Whereas Congress can be said to have delegated the interpretive authority that underlies Chevron deference, neither Auer nor Seminole Rock even purports to provide an equivalent foundation for a doctrine of deference to agency interpretations of their own regulations. Nor could they, as the interpretive authority at issue in Auer cases comes not from ambiguities left by Congress but from ambiguities left by the agencies themselves, and it is nonsensical to say that agencies have delegated interpretive authority to themselves.

The upshot is that Chevron is immune from Kisor, and the proponents of Auer have presented no plausible link between the fate of the two cases.

To be clear, I admire and respect the prodigious legal talents of Metzger, Vermeule, and Gorod. They are brilliant administrative law scholars and practitioners. But I think they’re reaching in their defense of the Auer doctrine in Kisor. As I digested these speculative arguments regarding Kisor’s putatively dire implications, I recalled Carl Sandburg’s famous quip: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”