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In an otherwise obscure case about veterans’ benefits, the Supreme Court on Wednesday took its first step in pushing back against the overweening administrative state that, at a time Congress isn’t legislating much, creates most of the law by which Americans live our daily lives.
At first blush, Justice Neil Gorsuch’s magisterial opinion (joined by three colleagues) that concurred only in the judgment—which remanded the case so a lower court can scrutinize the clarity of the regulation at issue—reads like a dissent. This conservative quartet would’ve thrown out Auer altogether, but now is left to complain that the majority “maimed and enfeebled—in truth, zombified” Auer deference. Keeping it “on life support” deprives the lower courts of clarity and litigants of the independent judicial decisions that the Constitution guarantees.
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But Chief Justice John Roberts—who joined the majority opinion, but only on stare decisis grounds (there weren’t five votes to sustain Auer on its own terms!)—echoed by Justice Brett Kavanaugh, who joined Gorsuch’s concurrence, explains that in practice the distance between the two positions isn’t all that great.
Roberts characterizes Justice Elena Kagan’s standard for granting deference as follows: “The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise.” Meanwhile, he sees Gorsuch’s view of when courts can be persuaded by an agency rationale thus: “The agency thoroughly considered the problem, offered a valid rationale, brought its expertise to bear, and interpreted the regulation in a manner consistent with earlier and later pronouncements.”
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In other words, Roberts concludes, the majority has so limited Auer that “cases in which Auer deference is warranted largely overlap with cases in which it would be unreasonable for a court not to be persuaded...
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