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Roberts Keeps Auer Deference on Life Support

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The U.S. Supreme Court today handed down its decision in Kisor v. Wilkie, a case that centered on the principle of Auer deference, the precedent that courts should defer to agencies’ interpretation of their own regulations.

The case centered on a dispute between James Kisor, a Vietnam War veteran, and the Department of Veterans Affairs over Kisor’s claim for disability benefits because of Post-Traumatic Stress Disorder (PTSD). Kisor sought disability benefits for PTSD in 1982, but VA denied his request at that time. In 2006, he asked again based on a psychiatric report, and VA agreed he had PTSD, but only gave him benefits from 2006 while he asked that benefits be retroactively applied to his 1982 claim. The dispute arose over records Kisor submitted to support his retroactive claim, which VA held were “not relevant” because they did not prove he had PTSD. Kisor claimed these are “relevant” records because they may not prove he had PTSD, but made it more probable (the same definition of relevance as the Federal Rules of Civil Procedure). The lower court agreed with the agency in a single line resting on Auer deference.

The Supreme Court plurality says that single line is not good enough. Instead the lower court “must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.” And secondly, the lower court “must assess whether the interpretation is of the sort that Congress would want to receive deference.” So the Court vacated and remanded for the circuit court to redo the case.

CEI attorney Devin Watkins said:

“The Supreme Court today acknowledged the problems with Auer deference, the precedent that courts should defer to agencies’ interpretation of their own regulations. The Court promises these issues will be fixed going forward, but just repeating the same instructions as before will not stop the lower courts’ reflexive and legally problematic deference to agencies. The plurality also continues to dismiss the substantial constitutional due process problems at issue. Due process requires a judge that is neutral between the parties, while Auer deference puts a thumb on the side of the government’s interpretation.

“Chief Justice Roberts, sadly, lets this charade continue on stare decisis grounds, meaning he chose not to overturn precedent. In an ends-justifies-the-means argument, Roberts he says that the plurality’s end result is close enough to the dissent and so he does not care how they reached the decision. He refuses to even join the plurality’s justification for Auer, failing to explain the basis on which Auer has any lawful authority to support following past precedents.

“The one silver lining in the decision is that Roberts suggests he would not rule similarly on deference to agencies interpretation of statutes. Refusing to allow agencies to interpret the limits of their own authority will be far more important than Auer deference.”

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