During the last week of its just-ended term, the Supreme Court handed down its much anticipated decision in Kisor v. Wilkie. Many observers thought – or at least were hoping – the Court would use Kisor to jettison the Auer deference doctrine. Under Auer, courts defer to agencies' own reasonable interpretations of their own regulations. (Sometimes Auer deference is called Auer-Seminole Rock deference, because the 1945 Seminole Rock case is to the same effect.) But those who hoped to see Auer overruled were disappointed.

Chief Justice Roberts provided the crucial fifth vote to preserve the Auer doctrine, albeit in form that now, at least if Justice Kagan's lead opinion is taken literally, should be more constraining. Given the supposed constraints articulated by Justice Kagan, Chief Justice Roberts did not find that it likely would make much difference, as a practical matter, if Auer were formally overruled or not. As he explained: "I write separately to suggest that the distance between the majority and Justice Gorsuch is not as great as it may initially appear."

Not surprisingly, Justice Gorsuch did not agree. In a forceful opinion, he argued that, any practicalities aside, fundamental separation of powers principles are implicated when judges defer to agencies' own interpretations of their regulations rather than deciding for themselves whether regulations are lawful.  Harkening back to Chief Justice Marshall's famous dictum in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Justice Gorsuch stated the Auer deference doctrine "sits uneasily with the Constitution." To put a point on it, he declared: "I would stop this business of making up excuses for judges to abdicate their job of interpreting the law." And, as pointedly, invoking the Founders' separation of powers understanding, Justice Gorsuch warned: "Our Nation’s founders were painfully aware of the dangers of executive and legislative intrusion on judicial decision-making."

Of course, you cannot think about the Court's treatment of Auer deference in Kisor without wondering about Chevron's future, given that at least five justices have intimated in one way or another a willingness to reconsider Chevron's validity. For present purposes, I simply point out that both Chief Justice Roberts and Justice Kavanaugh said their concurrences in Kisor should not be read to suggest that their refusal to overrule Auer necessarily implies the same result if Chevron is reconsidered. As the Chief Justice stated: " Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress."

So, with a revisiting of Chevron still on the table, I want to highlight one of my law review articles that no longer appears, jurisprudentially, to be as bold as when it was published in 2006. In Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. Law. Rev. 429 (2006), I argued that decisions of the so-called independent agencies, like the FCC, SEC, and FTC, should receive less deference than those of regular executive branch agencies. The argument is fully explained in the article, but, in short, the contention is that any fair reading of Chevron shows that the principal (even if not exclusive) rationale for granting deference to the agencies – EPA in that case – is the notion that Chief Executive, as opposed to the courts, is politically accountable. Because the independents, as I explain in my article, are less politically accountable to the Chief Executive than are the executive agencies, it's at least arguable that the independent agencies' decisions should be accorded less deference on review.

As I point out in Defining Deference Down, then-Harvard Law School dean – now Supreme Court Justice – Elena Kagan agreed with me in her Presidential Administration article published in the Harvard Law Review in 2000. Precisely because the independent agencies are less politically accountable to the president than the independents, Justice Kagan suggested that a variable Chevron doctrine "would begin by distinguishing between actions taken by executive branch agencies and those taken by independent commissions." She concluded that the Chevron doctrine "attuned to the role of President would respond to the disparity by giving greater deference to executive than to independent agencies."

I've suggested many times, based on my view of fundamental separation of powers principles, that there is a strong case for jettisoning, or at least restricting, the Chevron doctrine as it applies to all agencies. But barring such broader reconsideration, giving less deference to decisions of the independents, would be a modest, yet meaningful, incremental step. And, as I said in concluding Defining Deference Down, it would be a step that is "more consistent with our constitutional system," not to mention more consistent with Marbury's injunction that "it is the duty of the judicial department to say what the law is."

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Randolph May is President of the Free State Foundation. He is a former Chair of the ABA Section of Administrative Law & Regulatory Practice, a former Public Member and now Senior Fellow at the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration. This blog is adapted from a longer piece published originally on July 10, 2019, in Notice and Comment by the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice.