Chief Justice John Roberts today dealt another setback to legal conservatives, to clarity, and to the Constitution. Nonetheless, in the case of Kisor v. Wilkie, conservatives and the Constitution (but not clarity) gained important ground against the administrative state.
The case involved a Vietnam veteran’s claim for disability benefits. Officials at the Department of Veterans Affairs had denied part of his benefits request via a disputable interpretation of the VA’s own regulations. Lower courts, citing Supreme Court doctrine known as “Auer deference,” deferred to the VA’s interpretation without thoroughly reviewing whether that interpretation was correct. Veteran James Kisor asked the high court to abandon the Auer doctrine and consider the meaning of the regulation anew, on its own merits, without servile deference to the bureaucratic edict.
Most conservative legal minds believe Auer deference violates the Constitution’s structure by allowing executive agencies to exercise legislative and judicial functions as well as executive ones. They believe that once a rule is promulgated, the courts, not bureaucrats, should adjudge its meaning and determine if it’s being correctly applied.
As is his wont, Roberts tried to split the proverbial baby. Predictably, he created a bloody mess. The silver lining is that because of Roberts’ decidedly un-Solomonic judgment, Kisor himself still has a chance to secure full benefits, and the administrative state will be reined it at least somewhat. The dark cloud remains, though: Auer deference is preserved, in a way destined to cause not less but more confusion.
In Justice Elena Kagan’s plurality opinion, the court’s four habitually liberal justices defended the merits of Auer but significantly narrowed its scope. (They presumably felt obliged to do the latter in order to get Roberts to join part of their decision.) As per Kagan, judges henceforth will still be obliged to defer to agency interpretations, but only after a somewhat more comprehensive review of whether the agency acted too arbitrarily, too far afield from the regulation’s actual text.
Roberts refused to join the parts of Kagan’s opinion that defended Auer on the merits, but he did provide the key fifth vote, making a majority, for the portion that narrowed Auer’s scope. He then joined the portion keeping Auer at least nominally in place by explaining that Auer’s precedent had been cited too often to be easily abandoned.
In short, Roberts tacitly admitted that Auer is not defensible on its merits, but he is saving it anyway because other cases have relied on it.
Finally, Roberts and all four of the court’s more reliable conservatives joined the four liberals in deciding that Kisor should have another chance to win his case before a trial court, which now must apply Kagan’s new, more limited scope for Auer deference. So, unanimously, Kisor at least gets to keep his benefits request alive, albeit with an uncertain future. But executive agencies — bureaucrats — maintain the power to interpret and reinterpret the very meaning of the rules they impose on ordinary citizens.
The court’s four reliable conservatives pilloried both Kagan’s decision and Roberts’ confusion-inducing fence-straddling. Yes, they said, precedent is important; nonetheless, precedent as wrongheaded as Auer should be overturned, not salvaged just to maintain a (false) sense of stability.
In dissent, Justice Neil Gorsuch wrote that Auer violates key principles because it “means that, far from being ‘kept distinct,’ the powers of making, enforcing, and interpreting laws are united in the same [bureaucratic] hands — and in the process a cornerstone of the rule of law is compromised.” Moreover, Auer allows some capriciousness by agency officials. This caprice can work “against the interests of citizens in a fair hearing before an independent judge and a stable and knowable set of laws.”
In practical terms for most Americans, therein lies the importance of today’s decision. If judges must sometimes continue to defer to agencies as rulemakers, rule appliers, and rule adjudicators, that situation will “deny the people who come before us the neutral forum for their disputes that they rightly expect and deserve.”
There is some good news, though. In the constitutional contest against the administrative state, conservatives can take some solace, for two reasons. First, the new limits on Auer deference that the high court’s four liberals were pressured into adopting makes the doctrine, in Gorsuch’s words, a mere “paper tiger.”
Second, Roberts’ refusal to join key parts of Kagan’s opinion means that, for the first time, a majority of the Supreme Court has refused to support the allegedly constitutional reasoning underlying Auer.
In short, both Auer and administrative arbitrariness are in retreat. Conservative constitutionalists may not have scored a touchdown today, but they moved the ball across midfield and then downed a punt inside the opponents’ five-yard-line. The next time a citizen wants redress against unreasonable bureaucracies, his lawyers will be in better field position to help him punch across the goal line.
