Kisor v. Wilkie [SCOTUSbrief]
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Kisor v. Wilkie [SCOTUSbrief]

The Kisor case centers around a Department
of Veterans Affairs regulation governing the ways in which veterans can apply for disability
benefits or reopen past claims in which their appeals for benefits were denied. In this case, the question is whether Mr.
Kisor has new information that is relevant, that’s the word in the regulation, “relevant,”
to his previous claim that was denied. The word relevant appears in a VA regulation
and so the litigation is all about the question of whether the agency is obeying its own regulations
as it denies Mr. Kisor’s claims. In a narrow sense, the issue of the case is
whether Mr. Kisor is entitled to benefits from the Department of Veterans Affairs for
disability from post-traumatic stress disorder. But in a larger and much more important sense
for the rule of law, the question is whether the Court should defer to an agency’s interpretation
of its own regulation, a longstanding doctrine called Seminole Rock deference or Auer deference. We tend to refer to this doctrine as the Auer
doctrine or Auer deference because it traces back to the more recent mid-1990’s case of
Auer in which Justice Scalia and the unanimous Supreme Court reaffirmed this principle that
agencies receive utmost deference when interpreting their own regulations. But the doctrine actually traces farther back
to 1945 in a case called Bowles versus Seminole Rock where the Supreme Court originally uh
announced that the courts will defer to an agency’s interpretation of its own regulation
so long as the agency’s interpretation isn’t clearly erroneous or inconsistent with the
regulation’s text. Now for a long time, Auer deference and Seminole
Rock deference was fairly uncontroversial. But about a decade ago Justice Antonin Scalia
observed that Auer deference seems to be fundamentally at odds with our basic conception of separation
of powers. As Publius in the Federalist Papers observed,
uh the very definition of tyranny is the combination of legislative, executive, and judicial power
in one set of hands. And in one sense that’s what Auer deference
and Seminole Rock deference do. As Justice Scalia observed, the agency writes
the regulation, the agency enforces the regulation, and the agency more than the courts interprets
the regulation. Kisor’s best argument seems to be that Auer
deference raises profound challenges to the rule of law. More so even than Chevron deference, because
where at least Chevron deference involves Congress writing a law and the agency interpreting
it, with Auer deference, you have the agency itself writing the law, enforcing the law,
and interpreting the law, which is at odds it seems with our basic values of separation
of powers. Also, it raises concerns that the agency might
get strategic about the ways in which it writes regulations broadly and then interprets them
later with greater flexibility. Unlike Chevron deference where you have interplay
between multiple branches, Auer deference commits the entire rule-writing and rule-interpreting
process by and large to the agencies. That seems to be at odds with our basic values
of separation of powers, and that seems to be the core of Kisor’s claim. The best argument
for Secretary Wilkie is ultimately one of democratic accountability, namely that agencies
change hands from Republican administrations to Democratic administrations and elections
should have consequences. When agencies write regulations in broad terms,
as many regulations are, there should be an opportunity for future administrations to
rethink the original administration’s interpretation of the law, rather than allowing one agency
to lock in its successors by interpreting the law one way rather than another. Auer deference leaves space for future agencies
to revise their predecessors’ interpretation of the law, often in response to a change
of elections or a change in the basic understanding of how the law best operates. At its best, Auer deference is a doctrine
in favor of flexibility and democratic accountability. The issues in Kisor v. Wilkie go to the very
heart of the modern administrative state. Basic questions about what is the role of
courts in saying what the law is, and what is the role of agencies in promulgating rules
and enforcing the statutes passed by Congress? To what extent should the courts decide for
themselves what a regulation means and to what extent should they defer to the agency’s
interpretation of its own regulation? Kisor v. Wilkie is ultimately a question about
judicial responsibility, agency flexibility, and what it means to have the rule of law
in our modern administrative state.

One Comment

  • Joey B.

    Thank you for making these well illustrated, informative pieces. The judicial is obviously the most interesting branch of government, and these brief videos are great for keeping non-lawyers like myself up to date with what is going on on the front lines of government. Much appreciated.

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