It’s Auer Over but the Shouting

Recalibrating—And Restricting—The Deference Due Federal Agencies’ Interpretations Of Their Own Regulations

The Supreme Court recently issued its long-awaited decision in Kisor v. Wilkie, No. 18-15.  In a deeply divided decision generating four separate opinions spanning almost eighty pages, the Court announced a new multi-part framework for determining when courts should apply Auer deference—that is, when courts should defer to federal agencies in interpreting their own regulations.  A five-justice majority of the Court—through an opinion by Justice Kagan, joined in relevant part by Justices Ginsburg, Breyer, and Sotomayor and Chief Justice Roberts—rejected the challenger’s invitation to expressly overrule the Court’s highly contentious admin law precedents Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. 

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