Auer deference and its narrowing in Kisor v Wilkie
Auer Deference
What is Auer Deference?
Auer deference (also called Seminole Rock deference) is a principle of judicial review under which courts defer to an agency’s interpretation of its own ambiguous regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.
It originates from two key Supreme Court cases:
Seminole Rock & Sand Co. v. United States, 325 U.S. 410 (1945) — the initial articulation of the idea that courts defer to an agency’s reasonable interpretation of its own ambiguous regulation.
Auer v. Robbins, 519 U.S. 452 (1997) — reaffirmed and clarified Seminole Rock, establishing the modern doctrine.
Why is Auer Deference Important?
It recognizes that agencies have expertise in interpreting their own regulations.
It reduces litigation over ambiguous regulatory language.
It gives agencies flexibility to adapt interpretations over time.
Kisor v. Wilkie, 588 U.S. ___ (2019): Narrowing Auer Deference
Background
The Supreme Court revisited Auer deference in Kisor v. Wilkie, where the issue was whether the Department of Veterans Affairs’ interpretation of a regulation should receive Auer deference.
Kisor, a veteran, challenged the VA’s reading of its own regulation denying him benefits.
Holding and Key Points
The Court did not overrule Auer deference but narrowed its application significantly.
It held courts must first determine whether the regulation is genuinely ambiguous before deferring to the agency.
When a regulation is ambiguous, courts should carefully evaluate:
Whether the agency’s interpretation is reasonable.
Whether the agency’s interpretation reflects authoritative or official positions.
Whether the interpretation implicates the agency’s substantive expertise.
Whether the interpretation aligns with the agency’s prior interpretations.
Courts should reserve Auer deference for cases meeting these conditions, preventing agencies from gaining deference on just any interpretative whim.
Important Related Cases Explained
1. Seminole Rock & Sand Co. v. United States, 325 U.S. 410 (1945)
Facts: The question was whether the Secretary of Labor’s interpretation of a wage order was entitled to deference.
Holding: The Court held that unless clearly erroneous, the agency’s interpretation of its own ambiguous regulation should be followed by courts.
Significance: Established the principle that courts defer to agencies interpreting their own regulations due to their expertise.
2. Auer v. Robbins, 519 U.S. 452 (1997)
Facts: The issue was how to interpret the Department of Labor’s overtime pay regulations.
Holding: The Court reaffirmed Seminole Rock, holding that an agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent.
Significance: Solidified the doctrine now known as Auer deference, making it a cornerstone of administrative law.
3. Christensen v. Harris County, 529 U.S. 576 (2000)
Facts: The Court considered whether an agency’s opinion letter deserved Chevron or Auer deference.
Holding: The Court ruled that interpretative rules or opinion letters are not entitled to Chevron or Auer deference but may be persuasive.
Significance: Limited Auer deference by clarifying it only applies to formal agency interpretations, not all agency statements.
4. Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50 (2011)
Facts: The question was whether the FCC’s interpretation of its regulations deserved deference.
Holding: The Court reaffirmed Auer deference but emphasized the need for the agency’s interpretation to be reasonable and consistent.
Significance: Reinforced the boundaries of Auer, stressing careful application.
5. Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013)
Facts: The Court reviewed the EPA’s interpretation of a pollution regulation.
Holding: The Court declined to apply Auer deference because the agency’s interpretation was inconsistent with the regulation’s plain language.
Significance: Demonstrated limits on Auer when an agency’s interpretation conflicts with clear statutory or regulatory text.
6. Kisor v. Wilkie, 588 U.S. ___ (2019) (Detailed Again)
The Court emphasized the importance of courts conducting a rigorous analysis of regulatory ambiguity before applying Auer.
Courts must assess:
Genuine ambiguity after employing traditional tools of interpretation.
The agency’s reasonable interpretation backed by expertise.
Official status of the interpretation.
Consistency with prior interpretations.
This ruling has made it harder for agencies to obtain deference, increasing judicial scrutiny.
Summary Table
| Case | Year | Key Principle Regarding Auer Deference |
|---|---|---|
| Seminole Rock v. US | 1945 | Established deference to agency’s reasonable regulatory interpretations |
| Auer v. Robbins | 1997 | Reaffirmed Seminole Rock; set modern Auer deference |
| Christensen v. Harris County | 2000 | Limited Auer to formal agency interpretations, not opinion letters |
| Talk America v. Michigan Bell | 2011 | Emphasized reasonable, consistent agency interpretations required for Auer deference |
| Decker v. NW Environmental | 2013 | No deference when agency interpretation conflicts with plain text |
| Kisor v. Wilkie | 2019 | Narrowed Auer deference; courts must find genuine ambiguity and consider other factors before deferring |
Implications of Kisor for Administrative Law
Greater judicial scrutiny of agency interpretations of ambiguous regulations.
Courts are more empowered to reject agency interpretations that do not meet the rigorous standards.
Agencies must ensure interpretations are well-reasoned, consistent, and within their expertise.
Kisor preserves Auer but signals a move away from broad deference, impacting administrative flexibility.
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