Kisor v. Wilkie: high court toughens scrutiny of agency legal positions

Although the Supreme Court in yesterday’s case of Kisor v. Wilkie did not overturn its Auer deference precedent, as Justice Neil Gorsuch and three colleagues wanted it to do, it did adjust the law in a promising direction. Ilya Shapiro explains:

All nine justices agreed that courts need to work harder to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of deference.

In other words, the Court limited the number of cases where judges defer to agencies, while setting out standards for evaluating those cases that boil down to “when the agency is correct and brings its expertise to bear, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. That sounds like reining in the administrative state!…

At bottom, Kavanaugh makes the perfect analogy that sums up the unanimous Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.” Administrative agencies are now on notice that it’s not “anything goes” when they decide to rewrite their own rules, that judges will hold their feet to the statutory fire.

In short, while Kisor didn’t overturn Auer, it represents a pretty good start at limiting executive-agency overreach….

Earlier here and here.

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