As everyone knows, I don’t often blog more than once a week. However, there are occasional exceptions. Yesterday, the United States Supreme Court heard oral argument in Kisor v. Wilkie, a case that has huge implications for those practicing in the area of disability rights. It has huge implications for labor and employment attorneys and title IX attorneys. In fact, anywhere in the law where you have an agency issuing guidances, technical assistance memorandums, circulars, opinion letters, etc. will be impacted by this decision. So, I read the transcript of the oral argument yesterday, and wanted to provide some analysis and thoughts. Before proceeding further, this case considers the question whether courts should continue to give a high amount of deference to the situation where an agency is interpreting its own regulations outside of the rulemaking process. The blog entry is divided into two categories and they are oral argument highlights and my thoughts. The reader is going to definitely want to read the oral argument highlights section for sure, if not the whole thing.


Oral Argument Highlights

  1. The attorneys barely started speaking before the Justices jumped in with all kinds of questions.
  2. Hughes arguing for Kisor said that the problem with Auer deference is that it is a circumvention of the notice and comment requirements Congress mandated by the Administrative Procedure Act.
  3. Justice Breyer said that judges simply don’t have the expertise that agencies have and so, Auer deference makes sense. The specific example he used was a “moiety,” which is something the FDA has to deal with.
  4. Justice Breyer said that getting rid of Auer deference, “sounds like the greatest judicial power grab since Marbury v. Madison, which I would say was correctly decided.” That drew a laugh from everyone.
  5. Justice Breyer noted that rulemaking process takes a lot of time whereas guidances done outside the rulemaking process takes far less. Also, forcing everything into the rulemaking process will send everything into the courts to decide without much guidance.
  6. Justice Breyer noted that the exception in the Administrative Procedure Act with regards to rate making is precisely because nobody knew anything about rate making. Therefore, Auer has some persuasion that way.
  7. Justice Kavanaugh supposed that if you got rid of Auer deference, courts could fall back on Skidmore deference, which basically says that things are persuasive authority. The other thing Justice Kavanaugh noted throughout is perhaps the United States Supreme Court could make it easier for agencies to pursue the notice and commenting process. Justice Kavanaugh also said that the problem with Skidmore deference is that it is not much deference at all to the point of being meaningless.
  8. Justice Kagan noted that Auer deference has been around for a long long time, and Congress has shown no interest in reversing it. So, she wondered why overruling it would be the appropriate course in light of congressional acquiescence.
  9. Justice Kagan noted that the underpinning of Auer deference is agency expertise. That is, judges are far less suited to make the kind of minute decisions of agency policy than agency decision-makers are.
  10. Justice Breyer noted that Auer deference is premised on the Seminole Rock case decided in 1944 and the Administrative Procedure Act was written two years later. So, Auer deference was essentially around when the Administrative Procedure Act was enacted.
  11. Justice SotoMayor noted that as a practical matter Auer deference can be traced back to cases throughout the 1800s where the court essentially engaged in Auer deference. She also noted that agencies have better expertise as well as a better understanding, oftentimes, of what the needs are under that regulation. Further, regulated parties need to have a starting point of understanding how their conduct will be viewed. She agreed with Justice Kavanaugh that Skidmore deference was essentially no deference at all. Finally, the best people who can tell parties affected by regulations as to what is going are the agencies responsible to the public for having sound interpretations or reasonable interpretations.
  12. Justice Roberts also agreed that he had no idea what Skidmore deference actually was in practice.
  13. Justice Ginsburg wanted to know what would happen if the Supreme Court threw out Auer deference with respect to all the cases that have relied on Auer deference as the basis for their decision.
  14. The Justices in general seemed very skeptical of the compromise test put forth by the Solicitor General that he proposed to replace Auer deference.
  15. Not surprisingly, Justice Gorsuch made it quite clear that Auer deference should be gone. From this blog entry, we already knew that was coming. Also, while Justice Thomas did not ask any questions, which is usually the case, in other opinions he has said that Auer deference should be gone.
  16. Justice Gorsuch noted that many private parties believe getting rid of Auer deference would actually increase stability in the system.
  17. Justice Kavanaugh said that Auer deference, which focuses on ambiguity to begin with, creates a huge sideshow and that if notice and commenting were more efficient, it might just make more sense to do noticing and commenting.
  18. Justice Kavanaugh said that a problem with Auer deference is that judges might unanimously think deferring to the agency is wrong but they are given no choice to defer because of Auer deference. He said that happens in judicial conference rooms all the time.
  19. Justice Alito wondered if overruling Auer deference in terms of the impact on cases would not be made easier if the Solicitor General approach was adopted. That approach involved a six factor test. Many of the Justices struggled with that test.
  20. Justice Breyer alluded to judicial realism, which is a concept that judges figure out the decision first and then come up with the reasoning to back the decision up. He also noted that judges are less of a democratic solution than an agency would be.
  21. Justice Gorsuch noted that the Solicitor General’s compromise approach would allow for notice outside of the rulemaking process, even including an amicus brief filed by a regulatory agency. He then wondered how that served the democratic process or the separation of powers as opposed to having an independent judge. After all, a judge is supposed to decide all questions of law consistent with the appropriate statute.
  22. Justice Alito wanted to know the conceptual basis behind Auer deference. The response from the Solicitor General was that it is based upon the presumption of legislative intent. That is, courts defer to the agency’s reasonable interpretation of its otherwise ambiguous rules as part of the delegated rulemaking authority. Justice Kagan wanted to know why that is the case. Is it expertise? Political accountability? Uniformity? A combination of all of that?



  1. This is going to be a real close case. It isn’t exactly clear from the transcript itself as to where Justice Alito stands. It is also very unclear from the transcript where Justice Roberts stands.
  2. Justice Gorsuch clearly wants Auer deference gone.
  3. Justices Kagan, Breyer, Ginsburg, and SotoMayor want to keep it.
  4. Looking at a 5-4 decision or a six 6-3 decision against keeping Auer deference. Justice Roberts is going to be the swing vote, and it is even possible it goes 5-4 in favor of adopting some kind of approach for Auer deference that is not Auer deference, though I don’t think it will be the Solicitor General’s approach that is adopted. Either way, to my thinking anyway, which most certainly could be wrong, is expect Justice Roberts to be in the majority either way.
  5. I walked into this case with certain preconceptions that were most certainly challenged by the spirited debate among the Justices. Keep in mind, I actually worked for the Illinois Joint Committee on Administrative Rules at one time. JCAR is responsible for ensuring that Illinois agencies come up with rulemaking consistent with legislative intent of Illinois legislators. That background had me being a strong proponent of Chevron deference but not Auer deference. After reading the transcript of this case, it was much more complicated than a simple binary choice.
  6. The transcript was an incredibly fascinating read. It was like reading a great book. Okay, I’m weird.

Good luck on the baseball season. Opening day is today for many of the teams. Braves open in Philly and then play the Cubs at home for their home opener (I win either way there).