An opportunity to roll back the administrative state

Earlier this month, the Supreme Court agreed to hear a case that might well have major implications for administrative law. The case is Kisor v. Wilkie, in which a Marine seeks retroactive benefits for his PTSD.

Why is this case so important? Because, as David French explains, it turns on the deference, if any, the VA’s interpretation of the word “relevant” in the applicable federal regulations should receive.

French explains that, under current law, courts defer to an agency’s reasonable interpretation of its own ambiguous regulation. This means that the administrative state receives the benefit of the doubt twice.

First, under Chevron, courts defer to an administrative agency’s regulation if Congress hasn’t “directly spoken” to the issue and the agency has engaged in a “permissible construction” of the statute. Second, under Bowles v. Seminole Rock and Sand Co, and Auer v. Robbins, courts defer to the agency when even its own regulation is ambiguous. The agency thus receives deference both for its interpretation of the statute and for its interpretation of its interpretation.

This leaves regulatory agencies with enormous authority to craft and then interpret their own regulations. They are able, in French’s words, to “expand their constitutional role and essentially combine all three constitutional functions under a single bureaucratic tent.” The agency becomes “the lawmaker as it drafts regulations, the judge as it interprets its own laws, and the executive as it enforces the laws that it has drafted and interpreted.”

The Supreme Court decided to hear Kisor v. Wilkie for the stated purpose of considering whether to overrule Seminole Rock and Auer. If the Court does overrule these decisions, agency rules will continue to receive Chevron deference. However, they will no longer receive that second dose of deference.

Auer was decided in 1999 by a unanimous Court. Justice Scalia wrote the opinion. Since then, however, Chief Justice Roberts, in a concurrence joined by Justice Alito, has expressed a willingness to revisit the Auer doctrine. (Neither Roberts nor Alito was on the Court in 1999). Indeed, Scalia himself attacked the doctrine in a 2015 dissent.

The Court should overrule Auer. As my friends Jim Christman, David Harlow, and Craig Harrison observed nearly 20 years ago, in a May 12, 2000 Legal Backgrounder for the Washington Legal Foundation, wholesale deference has caused some agencies to stop trying to write clear rules. Instead, they write mush and then give it concrete form only through subsequent, less formal interpretations — without providing notice to the public and without following the Administrative Procedure Act (APA).

More fundamentally, once regulations have been promulgated, the question of what they mean is a pure question of law that only a court should be allowed to decide. The agency has already had the opportunity to exercise its “expertise” and “policymaking prerogatives” — the rationale for granting it deference in Chevron. As Christman, Harlow, and Harrison concluded:

Regulations are laws just as statutes are laws. Like statutes, regulations dictate behavior by those to whom they apply. Like statutes, regulations drive the expenditure of time and other resources on the part of those who are being regulated. Like statutes, if regulations are violated, enforcement proceedings, civil penalties, and perhaps even criminal sanctions may follow.

Accordingly, the responsibility for determining the meaning of regulations must rest ultimately not with any element of the executive branch that promulgated them, but with the judiciary.

The Supreme Court should take the opportunity presented by Kisor v. Wilkie to overrule Seminole Rock and Auer, and restore the control of courts over unbridled agency creativity in the reinterpretation of agencies’ own words.

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