The Force of Law After Kisor

Abstract

In Kisor v. Wilkie, Justice Gorsuch argued that Auer deference was incompatible with § 553 of the Administrative Procedure Act. He suggested that an interpretive rule that received Auer deference would be imbued with the “force of law,” thereby vitiating the APA’s distinction between legislative and interpretive rules. While Justice Kagan’s plurality opinion brushed aside this argument, it also failed to flesh out its own theory of when agency actions carry the “force of law.”

This Article is meant to fill the gap left after Kisor. The Article suggests that the two sides in Kisor talked past one another because of the fraught notion of the “force of law.” In this Article, I leverage the historical development of the pre- and post-APA case law to suggest that “the force of law” is a heuristic that refers to a “family” of related concepts. The family resemblance between these different concepts confuses judges and practitioners alike. After comparing the different iterations of the “force of law,” I conclude that Justice Gorsuch’s argument in Kisor has no link to either the case law or § 553 of the APA—stated differently, whether an interpretive rule receives Auer deference has no bearing on a “force of law” analysis.

Keywords: force of law, administrative law, deference, Kisor, final agency action, pre-enforcement review

JEL Classification: K30