Kagan, Gorsuch Clash Over the Auer Deference to the Administrative state

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The narrow majority in Kisor Vs Wilkie has saved the Auer deference from destruction by the Supreme Court. For the longest time, the administrative law has been intensely debated without any notable conclusion in sight. Critics of the administrative state especially those on the political right despised Auer and wanted it to die.

The crucial political right vote from chief justice John Roberts gave the fifth vote needed to affirm the Auer deference. The Auer deference provides that judges should defer to federal agencies when interpreting those agencies’ regulations in case of ambiguity.

The Auer deference states that “courts must respect agencies’ interpretations of their own regulations, so long as those interpretations are “reasonable.” The constitution also provides a structure for administration of laws.

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The constitutional objections to Auer

There are two major objections that have been raised by critics of the Auer deference. First, critics state that the Auer deference violates the courts due process because it denies one of the litigants a fair hearing. Also, critics state that by deferring to the agency’s interpretation, the judge fails to provide independent judgment.

Critics of the Auer deference also argue that if agencies were left to interpret ambiguities for the court, they would have too much power and control over certain rulings. The critics state that it doesn’t matter whether it is under a republican or democratic president, the agencies can give unreasonable interpretations to direct rulings in some way.

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Justice Gorsuch in his judgment to destroy the Auer deference noted that, “when we defer to an agency interpretation that differs from what we believe to be the best interpretation of the law, we compromise our judicial independence and deny the people who come before us the impartial judgment that constitution guarantees them.”

In response to the critics, Justice Elena Kagan notes that the Auer Deference is there only when “a regulation is genuinely ambiguous.” This means that there is no need for deference without ambiguity. She also indicated that by deferring to the agencies, a judge doesn’t go against chapter 706 of the administrative procedure act. In fact she notes that one would be fulfilling their duty to “determine the meaning” of a rule.

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In her ruling, Kagan pointed out that the deference doctrine pointed out would be “potent but cabined in its scope.” However, Gorsuch disagreed with this saying that under Auer a court would have to go along with an interpretation of an agency that is “not the best or fairest.”

Chief Justice Roberts in his agreement with Kagan’s argument said that “it would be unreasonable for a court not to be persuaded be an agency’s interpretation of its own regulation.” However, he further noted that if a judge commits to favoring the interpretation even when the court thinks the other litigant has a better reading then that would show bias.

The chief justice’s vote may have put a rest on one of the hotly debated issues in the judicial circles for now. But, a huge constitutional rift still separates justice Kagan and Justice Gorsuch because of their differing approaches to deference. Do you think cases that put deference to the test will be fair or biased?

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