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With Administrative Law Rollback, Supreme Court Begins To Drain The Swamp

June 28, 2019 in Economics

By Ilya Shapiro

Ilya Shapiro

In an otherwise obscure case about veterans’ benefits, the
Supreme Court on Wednesday took its first step in pushing back
against the overweening administrative state that, at a time
Congress isn’t legislating much, creates most of the law by
which Americans live our daily lives.

In Kisor v. Willkie, the court was asked
to decide how much judges should defer to bureaucrats who
re-interpret their own regulations. It didn’t overturn that
Auer deference,” but it limited it in
significant ways: All nine justices agreed that courts need to
ensure that a regulation truly is ambiguous before giving the
agency re-interpreting it any sort of leeway. (If a regulation
isn’t ambiguous, then there’s no reinterpretation

In other words, the Supreme Court limited the types of cases
where judges defer to agencies, while setting standards for
evaluating those cases that boil down to “when the agency is
correct and employs special expertise, having considered the
reliance interests of those being regulated” rather than just
making legal or political judgment calls willy-nilly. So
Auer deference technically survives, but this new rule
sounds an awful lot like reining in the administrative state! (Full
disclosure: I filed
a brief for the Cato Institute
, joined by superstar law
professors Jonathan Adler, Richard Epstein, and Michael McConnell,
arguing for Auer’s overruling.)

Executive agencies are on
notice that it’s no longer ‘anything goes’ when they rewrite their
own rules, that judges will hold their feet to the statutory

At first blush, Justice Neil Gorsuch’s magisterial opinion
(joined by three colleagues) that concurred only in the
judgment—which remanded the case so a lower court can
scrutinize the clarity of the regulation at issue—reads like
a dissent. This conservative quartet would’ve thrown out
Auer altogether, but now is left to complain that the
majority “maimed and enfeebled—in truth,
zombified” Auer deference. Keeping it “on life
support” deprives the lower courts of clarity and litigants
of the independent judicial decisions that the Constitution

But Chief Justice John Roberts—who joined the majority
opinion, but only on stare decisis grounds (there
weren’t five votes to sustain Auer on its own
terms!)—echoed by Justice Brett Kavanaugh, who joined
Gorsuch’s concurrence, explains that in practice the distance
between the two positions isn’t all that great.

Roberts characterizes Justice Elena Kagan’s standard for
granting deference as follows: “The underlying regulation
must be genuinely ambiguous; the agency’s interpretation must
be reasonable and must reflect its authoritative, expertise-based,
and fair and considered judgment; and the agency must take account
of reliance interests and avoid unfair surprise.” Meanwhile,
he sees Gorsuch’s view of when courts can be persuaded by an
agency rationale thus: “The agency thoroughly considered the
problem, offered a valid …read more

Source: OP-EDS

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