Kisor v. Wilkie

Procedural Law

Argument: March 27, 2019

Petitioner Brief: James L. Kisor

Respondent BriefBrief of respondent Robert Wilkie, Secretary of Veterans Affairs

Court below: United States Court of Appeals for the Federal Circuit

Court below: United States Court of Appeals for the Federal Circuit

The Supreme Court is considering overruling longstanding precedent on agency deference

Congress makes laws. Agencies interpret them. And because agencies are the substantive experts, agencies get to interpret laws with a degree of flexibility.

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Here’s an example. Congress passes a law relating to healthcare. Congress doesn’t sort out all of the details, but it tells the health agency, Health and Human Services, to pass regulations specifying the details. HHS does that. When a case presents some confusion about what the law says, courts will generally defer to the agency’s interpretation of the law, as long as that interpretation is reasonable. This doctrine is called Chevron Deference. And here’s some more background on agency deference, including some political controversy over it.

This case is not about overruling Chevron Deference; it’s about one of Chevron’s corollaries: Auer Deference.

Auer Deference

Where Chevron Deference allows agencies to interpret laws (passed by Congress), Auer Deference allows agencies to interpret (or re-interpret) the agency’s own regulations. Just like the rationale in Chevron, agencies are the substantive experts; they are in the best position to make the policies. But furthermore, doesn’t an agency know best what its own regulation means?

However, the litigant in this case suggests Auer Deference is bad policy. Not just bad, but unconstitutional.

The case

In this case, a Vietnam war veteran requested benefits based on suffering from Post-Traumatic Stress Disorder and was denied. In denying Kisor’s claim, the Department of Veterans Affairs relied on an interpretation of the word “relevant” in its own regulations.

Kisor said the VA’s interpretation was wrong. Kisor wanted a chance to argue that the agency regulation actually meant something else (and that his claim for benefits is valid). But, because of Auer Deference, the federal court would not question the agency’s interpretation.

There’s something circular about Auer Deference

It’s true that an agency probably does know best what it means, or meant, when it made a particular regulation. But what if the agency decides to change the meaning later? Kisor argues that Auer Deference actually gives an agency the incentive to draft regulations vaguely, so that it can decide on the interpretation it wants later. And vague regulations are unfair and unconstitutional. The Constitution’s Due Process clause requires that people must be given fair notice of the laws affecting them. In fact, the Supreme Court ruled against a deportation order last term because the law was too vague (Sessions v. Dimaya).

But there’s always a degree of uncertainty in rule-drafting. Does an agency actually have an incentive to draft vague laws? Agencies generally prefer to regulate with certainty because they want people who are governed to know what to do. Furthermore, confusion and ambiguity will cause more administrative or litigation expense.

Separation of powers

Kisor also presents a Separation of Powers argument. The three branches of government are supposed to have “checks and balances” on one another. In this situation, the agency is reinforcing itself. Kisor says courts (in the judicial branch) are supposed to play the interpretive role. The question of interpretation shouldn’t turn back on the branch that made the initial interpretation.

With Chevron Deference, by contrast, the agency gets to reinforce a Congressional rule (executive reinforcement of the legislative branch). Some advocates are concerned that the Court might question Chevron Deference in this case in addition to Auer Deference because Kisor’s separation of powers argument might apply to Chevron too. Chevron still takes the interpretive powers out of the judicial branch to a degree.

The Supreme Court will hear arguments on March 27, 2019.


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