Administrative law after Kisor v Wilkie
Administrative Law After Kisor v. Wilkie (2019)
Background:
Kisor v. Wilkie (2019) is a landmark Supreme Court case that clarified the doctrine of Auer deference (also known as Seminole Rock deference), which gives agencies deference when interpreting their own ambiguous regulations. The Court reaffirmed Auer but imposed new limitations on when courts should apply this deference.
Key Points from Kisor v. Wilkie:
Auer deference applies only if:
The regulation is genuinely ambiguous after exhausting all traditional tools of interpretation (text, structure, history, purpose).
The agency’s interpretation is reasonable.
The interpretation reflects the agency’s authoritative or official position.
The agency’s interpretation implicates its substantive expertise.
The agency’s interpretation is not an unfair surprise to regulated parties.
The Court emphasized judicial skepticism toward agency interpretations, signaling courts should carefully scrutinize whether deference is appropriate rather than automatically granting it.
Case 1: Kisor v. Wilkie (2019)
Facts: James Kisor, a veteran, sought disability benefits based on PTSD-related stress. The question arose around how to interpret the VA’s regulation regarding what counts as “incurred in the line of duty.”
Issue: Should courts defer to the VA’s interpretation of its own regulation under Auer?
Decision: The Supreme Court reaffirmed Auer deference but limited its application, emphasizing the five conditions listed above.
Significance: The case reshaped administrative law by restricting automatic agency deference and reaffirming courts’ duty to independently interpret regulations before deferring.
Case 2: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
Facts: The EPA interpreted the Clean Air Act's definition of “source.” NRDC challenged the interpretation.
Issue: When courts review agency interpretations of statutes, how much deference should be given?
Decision: Established the “Chevron two-step” test:
If Congress’s intent is clear, courts follow it.
If the statute is ambiguous, courts defer to a reasonable agency interpretation.
Significance: Chevron remains foundational for judicial review of agency statutory interpretations, distinct but related to Auer (which covers agency interpretation of its own regulations).
Case 3: Martin v. Occupational Safety and Health Review Commission (2017)
Facts: OSHA interpreted its own safety standards in enforcement.
Issue: Should courts defer to OSHA’s interpretation of its own regulation under Auer?
Decision: The D.C. Circuit applied Auer deference but the case helped frame questions later clarified in Kisor.
Significance: Showed practical challenges in application of Auer before Kisor, which then refined the standards for deference.
Case 4: Christensen v. Harris County (2000)
Facts: The Department of Labor issued an opinion letter about overtime rules.
Issue: Whether Chevron or Auer deference applies to agency interpretive rules, opinion letters, or guidance documents.
Decision: The Court held that informal agency interpretations (like opinion letters) do not merit Auer deference but may be given respect under the Skidmore standard based on their persuasiveness.
Significance: Distinguished when Auer applies only to formal, authoritative agency interpretations and limited deference for less formal ones.
Case 5: United States v. Mead Corp. (2001)
Facts: The U.S. Customs Service issued a classification ruling on tariff terms.
Issue: When should courts defer to agency statutory interpretations under Chevron?
Decision: Not all agency interpretations merit Chevron deference; only those with formal procedures (e.g., notice and comment rulemaking) typically do.
Significance: Established limits on Chevron deference, emphasizing formality and procedural rigor.
Case 6: Encino Motorcars, LLC v. Navarro (2018)
Facts: The Department of Labor interpreted a regulation exempting certain employees from overtime.
Issue: Whether the agency’s interpretation was reasonable and deserving Chevron deference.
Decision: The Supreme Court scrutinized the agency’s reasoning and held that Chevron deference does not shield arbitrary or inconsistent agency interpretations.
Significance: Reinforced judicial oversight of agency interpretations and helped pave the way for Kisor’s caution in deference.
Summary: Post-Kisor Administrative Law Landscape
Kisor tightened the rules for Auer deference, requiring courts to carefully analyze whether deference is appropriate.
Chevron remains the dominant test for agency interpretation of statutes.
Agencies get less deference for informal guidance or opinions (Christensen).
The rigor of agency process influences the level of deference (Mead).
Courts continue to play an active role in checking arbitrary or unreasonable agency interpretations (Encino).
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