Wednesday, August 14, 2019
Paul J. Larkin, Jr. (The Heritage Foundation) has posted Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie (Cato Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
In Bowles v. Seminole Rock & Sand Co. 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997), the Supreme Court held that a court must accept an agency’s construction of a vague or ambiguous rule unless the agency’s interpretation conflicts with the rule’s text. After two decades of criticism that agencies should not be free to delegate to themselves the final authority to adjudicate a legal issue, the Supreme Court decided to re-examine Seminole Rock and Auer. In Kisor v. Wilkie, a fractured majority of the Court decided to rewrite those decisions rather than overturn them, at least at this time — a “mend it, don’t end it” approach to administrative law. Those decisions survived, albeit in an entirely different form. Seminole Rock and Auer now far more closely resemble Chevron than their original opinions. Whether that is good or bad, and whether the Court will revisit the legitimacy of Seminole Rock and Auer, remains to be seen. In the meantime, the Court will need to address three issue that arise from Kisor: (1) Can an agency’s interpretation receive any deference if the agency has not complied with the Congressional Review Act by submitting the rule to Congress? (2) Can an agency rule receive any deference if it defines an element of a federal criminal offense? (3) Can an agency rule receive deference if it was issued by a so-called “independent” agency? The Court will also need to address the legitimacy of Chevron deference.