7/04/2019

With Administrative Law Rollback, Supreme Court Begins To Drain The Swamp

"In Kisor v. Willkie, the court was asked to decide how much judges should defer to bureaucrats who re-interpret their own regulations. It didn’t overturn that “Auerdeference,” but it limited it in significant ways: All nine justices agreed that courts need to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of leeway. (If a regulation isn’t ambiguous, then there’s no reinterpretation possible.)

In other words, the Supreme Court limited the types of cases where judges defer to agencies, while setting standards for evaluating those cases that boil down to “when the agency is correct and employs special expertise, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. So Auer deference technically survives, but this new rule sounds an awful lot like reining in the administrative state!"