Kisor v Wilkie (limits on Auer deference)
Kisor v. Wilkie (2019)
Auer deference (from Auer v. Robbins, 1997) instructs courts to defer to an agency’s interpretation of its own ambiguous regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.
This deference gives agencies significant power to interpret their own rules, recognizing their expertise.
In Kisor v. Wilkie, the Supreme Court was asked to revisit the scope and limits of Auer deference.
Facts
James Kisor, a Vietnam War veteran, sought disability benefits from the Department of Veterans Affairs (VA).
The VA denied his claim, interpreting a regulation in a way unfavorable to Kisor.
Kisor challenged the denial, arguing the VA’s interpretation was incorrect.
Issue
Should courts continue to defer to an agency’s interpretation of its own ambiguous regulations under Auer deference?
If so, what limits should be imposed on this deference?
Holding
The Court upheld Auer deference but significantly limited its application.
It clarified that deference applies only if:
The regulation is genuinely ambiguous after a traditional tools of interpretation analysis.
The agency’s interpretation is reasonable.
The interpretation reflects the agency’s authoritative, expertise-based, or fair-and-considered judgment.
The agency’s reading does not create unfair surprise or inconsistent policies.
The Court emphasized the importance of judicial independence and warned against blind deference.
Significance
Kisor restricts and refines Auer deference, preventing agencies from wielding unchecked power in interpreting ambiguous regulations.
Courts must conduct a careful analysis before deferring.
The decision signals skepticism toward agency interpretations that are ambiguous, inconsistent, or opportunistic.
Related Cases on Agency Deference and Interpretation
1. Auer v. Robbins (1997)
Facts: The Department of Labor interpreted its own regulation about overtime pay.
Holding: The Supreme Court held courts should defer to an agency’s reasonable interpretation of its own ambiguous regulations.
Significance: Established Auer deference, expanding agency power over interpretation of their own rules.
Relation to Kisor: Kisor reaffirmed Auer but narrowed its scope.
2. Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984)
Facts: The EPA issued a regulation under the Clean Air Act that environmental groups challenged.
Holding: The Court established the two-step Chevron deference framework:
Has Congress directly spoken to the precise issue? If yes, court and agency must follow Congress.
If statute is ambiguous, defer to reasonable agency interpretation.
Significance: Chevron applies to agency interpretations of statutes, distinct from Auer (agency interpretations of their own regulations).
Relation: Both Chevron and Auer involve deference but apply in different contexts.
3. Bowen v. Georgetown University Hospital (1988)
Facts: The Department of Health and Human Services tried to apply a new interpretation retroactively.
Holding: The Court ruled that agencies cannot apply new interpretations retroactively unless Congress expressly authorizes it.
Significance: Limits agencies’ power to change interpretations arbitrarily, reinforcing predictability.
Relation: Kisor’s emphasis on fair notice aligns with this principle.
4. United States v. Mead Corp. (2001)
Facts: The U.S. Customs Service issued rulings without formal procedures; Mead challenged their deference.
Holding: The Court limited Chevron deference to agency actions with “force of law” (formal rulemaking or adjudication).
Significance: Differentiates between informal agency interpretations and those warranting Chevron deference.
Relation: Kisor’s focus on when to defer is consistent with Mead’s approach to limiting deference.
5. Pereira v. Sessions (2018)
Facts: The Board of Immigration Appeals interpreted immigration procedural rules.
Holding: The Court declined to apply Auer deference because the agency’s interpretation was not persuasive.
Significance: Shows courts sometimes reject Auer when the agency’s interpretation is unreasonable or inconsistent.
Relation: Foreshadowed Kisor’s caution about blind deference.
Summary Table
| Case | Deference Type | Holding / Impact | Relation to Kisor |
|---|---|---|---|
| Kisor v. Wilkie (2019) | Auer | Limited Auer deference; requires careful application | Key case limiting Auer |
| Auer v. Robbins (1997) | Auer | Courts must defer to agency’s reasonable interpretation of its regulations | Established Auer |
| Chevron v. NRDC (1984) | Chevron | Established framework for deference to agency statutory interpretation | Different deference, but related |
| Bowen v. Georgetown (1988) | Retroactivity limits | Agencies cannot retroactively change interpretations without clear authority | Limits agency power, supports Kisor’s fairness |
| Mead Corp. (2001) | Chevron limits | Limits Chevron deference to agency actions with force of law | Aligns with Kisor’s careful approach |
| Pereira v. Sessions (2018) | Auer limits | Rejected deference where agency interpretation unpersuasive | Precursor to Kisor’s limits |
Conclusion
Kisor v. Wilkie reaffirms judicial deference to agencies interpreting their own ambiguous regulations but imposes important limits to prevent abuse of this power. Courts must ensure:
Genuine ambiguity exists,
The agency’s interpretation is reasonable and consistent,
The interpretation reflects agency expertise and careful consideration,
The public is not unfairly surprised.
Together with Chevron and other cases, Kisor shapes a balanced framework between agency expertise and judicial oversight, protecting fair notice and preventing unchecked administrative power.
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