Agency Deference After Kisor v. Wilkie

38 Pages Posted: 15 Aug 2019 Last revised: 13 Sep 2019

Date Written: September 11, 2019

Abstract

In Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins the Supreme Court directed federal courts to defer to an agency’s interpretation of a vague or ambiguous rule. After two decades of criticism that those decisions effectively transferred law-interpreting power from Article III courts to unelected agency officials, the Court granted review last term in Kisor v. Wilkie to decide whether to overturn Seminole Rock and Auer. A badly fractured Court decided to completely rewrite those decisions, rather than overturn them. In essence, Kisor turned Seminole Rock and Auer into Chevron deference. Yet, the Court did not decide whether the Administrative Procedure Act forbids giving an agency any deference when it construes a law, so the Court has simply kicked the can down the road for perhaps a few more terms. This Article will summarize Kisor and explain what it portends for administrative law. The Article will also discuss the answers to three questions that will arise in the application of Kisor and Chevron: (1) What effect does a statute known as the Congressional Review Act have on the deference issue; (2) should an agency’s interpretation of its organic statute and own rules receive deference, not in an administrative proceeding or a civil lawsuit, but in a criminal prosecution; and (3) is there a basis for treating differently the interpretations adopted by so-called “executive” and “independent” agencies.

Keywords: Chevron, Seminole Rock, Auer, Deference, Deference to an agency's interpretation of a statute, Deference to an agency's interpretation of a rule

Suggested Citation

Larkin, Jr., Paul James, Agency Deference After Kisor v. Wilkie (September 11, 2019). Georgetown Journal of Law & Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3436163 or http://dx.doi.org/10.2139/ssrn.3436163

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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