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.