Shortly before the new year, when the holidays were in full swing, Kisor v. Wilkie celebrated its half-birthday. That was quick. Just six months ago – when short winter days were long summer nights, when peppermint mochas were cold beers served in frosted mugs – the U.S. Supreme Court decided by the narrowest of margins to spare the life of Auer deference, the strong form of deference that for decades had been routinely given to federal agencies for interpretations of their own ambiguous regulations. In a splintered decision, Justice Kagan penned a decision in Kisor in which Justices Ginsburg, Breyer, and Sotomayor joined. Those four agreed that Auer deference is theoretically justified, that it does not undermine the APA or the Constitution, and that principles of stare decisis counsel for judicial restraint.
Notably, Justice Kagan failed to capture a majority on her justifications for Auer deference. This is important. Before Kisor, the Supreme Court had never really provided a firm theoretical rationale for Auer deference. After Kisor, the justifications for Auer deference are even more suspect given that only four Justices even agreed that the doctrine was a theoretically defensible idea. Given those shaky foundations, it is not surprising that in order to save Auer, in order to earn the critical fifth vote from Chief Justice Roberts, Justice Kagan had to weaken it. She had to articulate a version of Auer that is more cabined in its scope and restrained in its application than has been common practice over the past few decades. In particular, she admonished lower courts to engage in a rigorous and independent review of an allegedly ambiguous agency regulation to determine if it is genuinely as advertised. She describes a framework for review that looks very much like the Chevron doctrine, only with more bite and with a warning label: this is a test that an agency can fail.
After six months, in a time of reflection and resolutions, we can pause from the heft of eggnog and the specter of twinkle lights to ask whether Kisor has made a discernible impact on the landscape of administrative law. In doing so, we might observe two things: First, there has been an impact. Second, the new Auer is not really new at all. In order to save Auer, Justice Kagan was not weakening it. Rather, she was simply helping Auer return to its roots, reminding courts to engage in the rigorous, independent-style review that was commonplace at the time of its creation. If we are prone to the sentimentality of the season, we might say that Kisor is a story of homecoming.
A bit of history might help us gain some perspective: Auer deference originated not with the 1997 case of Auer v. Robbins, but a half-century earlier with the 1946 case of Bowles v. Seminole Rock & Sand Co. It began as a doctrine with significant constraints, at a vastly different moment in administrative law under in highly specific circumstances of the post-war era. To that end, it was applied only in the price control context and only to official agency interpretations. And notably, courts applying the doctrine took a heavy hand in examining the text of the regulation—often deferring only after engaging in an independent review of the regulatory text. In other words, the rigorous review that Kisor articulates follows closely the pattern of how courts approached Seminole Rock deference in the early years.
Over the course of thirty years, Seminole Rock became completely divorced from these modest and restrained origins. By the 1970s, it was transformed; it was mechanically applied and reflexively treated as a constraint upon the careful inquiry that one might ordinarily expect of courts engaged in textual analysis. With the transformation of both the doctrine and the administrative state, discomfort with the doctrine grew – first among scholars like John Manning in the mid-1990s and then in the Supreme Court jurisprudence about a decade ago. Eventually, we arrived at the doorstep of Kisor and now appear to have returned nearly full circle to Seminole Rock.
Early signs indicate that Kisor has been more than lip service. Ordinarily, six months is hardly enough time for a change like this to take root in the jurisprudence. Kisor, however, has already been cited in over 80 judicial opinions. Influential jurisdictions like the U.S. District Court for the District of Columbia have taken Kisor to heart and are engaging in rigorous textual review of agency regulations before deciding whether deference is warranted. See, e.g., Stand Up for California! v. DOI (emphasizing the courts obligation under Kisor to “exhaust[] all the traditional tools of construction to determine the meaning of the regulation”); cf. Am. Tunaboat Ass'n v. Ross (deferring only after engaging in rigorous review). The D.C. Circuit has even cited Kisor for the proposition that Chevron deference should not be “reflexively” given to agency interpretations. Mozilla Corp. v. FCC, (“[W]e do not apply Chevron reflexively, and we find ambiguity only after exhausting ordinary tools of the judicial craft.”).
Other circuits have similarly indicated that Auer deference is to be earned, not afforded as a matter of course. The Ninth Circuit, for example, declined to defer to the Department of Energy in a case alleging a violation of the Energy Policy and Conservation Act's error-correction rule. NRDC v. Perry (engaging in rigorous review of the regulatory language and declining to defer because “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary interpretation.”). See also Romero v. Barr (citing Kisor to describe the demanding Auer framework, engaging in independent textual analysis, and declining to defer to the agency after finding the regulation unambiguous).
Of course, as with the application of other deference doctrines, the outcomes of cases involving Kisor review will vary greatly. As the body of cases available for analysis grows, empiricists will undoubtedly have ample data to begin exploring the particular contours of Kisor’s impacts on judicial deference. For now, however, a bird’s eye view of the early cases indicates that Auer is homeward bound.
The historical analysis provided in this post is based on the work of Sanne H. Knudsen & Amy J. Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L.J. 47 (2015).
Sanne Knudsen is the Stimson Bullitt Endowed Professor of Environmental Law at the University of Washington.
