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Supreme Court Punts Larger Key Administrative Deference Issues Until Later

A key building block of U.S. government is how administrative agencies interpret their own regulations. Because this question is so fundamental to the entire regulated community, we have blogged about administrative deference generally and the Kisor case specifically. The Supreme Court affirmed the long-standing judicial tenet of administrative deference to agencies’ interpretation of their own regulations this week. In doing so, however, the majority cautioned against a laissez faire application of deference, emphasizing that courts must carefully and explicitly consider the specific criteria established under Auer v. Robbins before deferring to an agency’s interpretation of its own regulation.

The Supreme Court considered a fundamental question in Kisor – namely the issue of whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. – the two seminal cases establishing the Court’s current position on administrative deference. That question cuts to the heart of the issue of deference and administrative law itself. Overruling one or both of these decisions could have resulted in courts deferring to agencies’ interpretations of their own regulations considerably less frequently.

In the end, the Supreme Court in Kisor refused to overturn Seminole Rock/Auer, forgoing a big-picture reconsideration of deference. At least for the time being. Five of the nine Supreme Court justices ruled that Seminole Rock/Auer deference is inappropriate if the reviewing court finds that the agency’s interpretation is unreasonable, after applying all the traditional tools of statutory construction. That is, a court will not defer to an agency’s interpretation if it is not within the range of reasonable readings left open by a genuine ambiguity in the regulation.

Though not overturning the marquee decisions, the majority emphasized the limits on Auer deference: a court should defer to an agency’s interpretation only if the interpretation (1) is an official position of the agency made in some formal context, though the majority concedes that an interpretation may still be given Auer deference even if it is not approved by an agency head, for example; (2) is consistent with prior formal interpretations of the agency; (3) rests on actual agency expertise and not merely a litigation position; and (4) was issued with fair notice to regulated entities. These limits on Auer deference could create an uphill battle for administrative agencies challenged to defend interpretations of certain policies and rules in the future.

And Kisor does not appear to conclusively end the administrative deference debate. In fact, four of the nine Supreme Court Justices favored an even broader ruling overturning Auer and Seminole Rock, which makes it likely that the Supreme Court could revisit administrative deference issues soon. Judge Gorsuch, for example, called the majority decision “more a stay of execution than a pardon” of the Auer doctrine and favored overturning it entirely. A fifth – Chief Justice John Roberts – indicated in a concurrence that he was willing to revisit so-called Chevron deference, which is deference relating to an agency’s construction of statutory law, in the future.

© 2019 Schiff Hardin LLP

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About this Author

J. Michael Showalter, Litigator, Schiff Hardin LLP
Associate

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and...

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Alex Garel-Frantzen, Schiff Hardin, Environmental attorney, EPA regulation lawyer, air toxins legal counsel, environment law enforcement
Associate

Alex Garel-Frantzen is an associate at Schiff Hardin who works with the Environmental group on issues like EPA regulations, air toxins, and environmental law enforcement and compliance.

EDUCATION

  • University of Illinois College of Law, J.D., 2015, magna cum laude

    • University of Illinois Law Review, Managing Notes Editor

    • Environmental Moot Court, editor and national team member

    • CALI awards in Legal Writing & Analysis, Legal Research, and Introduction to Advocacy

  • University of Illinois, B.A., History, 2012, magna cum laude

BAR ADMISSIONS:

  • Illinois

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