In Kisor v. Wilkie, 588 U.S. __ (2019), a five Justice majority substantially narrowed, but did not wholly overturn, the embattled doctrines arising from Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945).  Under the Auer deference doctrine, courts must defer to reasonable agency interpretations of their own regulations.  Several Justices and prominent scholars had criticized Auer deference on statutory, constitutional, and practical grounds.  While Auer deference lives on after Kisor, the continuing practical relevance of the doctrine is doubtful for most cases.  Further, Kisor’s limitations on Auer deference may portend a similar fate for Chevron deference, in future cases.
Continue Reading