Last week, the Solicitor General filed the United States’ eagerly anticipated response brief in Kisor v. Wilkie, the important case in which the Supreme Court is considering whether to overrule the doctrine of judicial deference to agency interpretations of regulations set forth in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). As applied by the Court in recent years, Seminole Rock deference – a.k.a. Auer deference – means that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. Kisor is scheduled for oral argument on March 27.
The Solicitor General’s brief is quite unusual, and it merits careful attention. The brief forcefully criticizes Auer/Seminole Rock deference. Yet the brief also argues – again forcefully – that the cases should not be overruled “in their entirety.” The brief foreshadows some of the challenges that the Solicitor General (or his colleague) will likely face at oral argument. Several members of the Court have expressed considerable skepticism about the wisdom of Auer and Seminole Rock and seem interested in overruling the cases. The internal tensions that seem apparent in the Solicitor General’s brief are likely to provide some targets for challenging oral argument questions.
To be sure, this is not to say that all the challenging questions at oral argument will be aimed at the Department of Justice. At least some members of the Court, perhaps even a majority, will likely be reluctant to overrule Auer and Seminole Rock.
The government was faced with something of a dilemma in filing its response brief in the Kisor case addressing the level of deference owed to an agency’s interpretation of its own regulation. … On the one hand, the government was defending the agency action in this case and the decision below, which rested on paying Auer deference to the agency’s interpretation. On the other hand, conservative legal theorists have long been critical of Auer deference, following Justice Scalia’s lead, and the views of the political appointees in this administration about Auer likely range from unenthused to hostile. But on the third hand, the government’s institutional interests would generally be better served by a strong principle of Auer deference, since that would make challenges to agency action more difficult.
The government’s brief attempts to juggle these conflicting imperatives, and the result is a bit schizophrenic. The bottom line is that the government argues that Auer should not be overruled, but that its applicability should be substantially narrowed. In the end, the government does not rely on Auer to defend the agency action in this case, but instead argues that the regulation is clear on its face without the need to consider the agency interpretation at all. …