Supreme Court Leaves Underpinning of Administrative State in Place

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
June 26, 2019 Updated: June 26, 2019

WASHINGTON—The Supreme Court unexpectedly passed up an opportunity to overturn a bureaucracy-empowering legal doctrine when, on June 26, it ruled against a Marine Corps veteran seeking government-provided medical benefits.

When the Supreme Court agreed Dec. 10, 2018, to hear the veteran’s appeal of a denial of benefits, it was widely interpreted in the legal community as indicating that the high court, its conservative wing having recently been bolstered by the addition of Justice Brett Kavanaugh, was considering tearing away at the legal underpinnings of the modern administrative state.

It was thought that the decision to hear the case might foreshadow a narrowing of the application of the so-called Chevron doctrine that the Supreme Court enunciated in 1984. In the landmark ruling in Chevron v. NRDC, the high court held that while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find that “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

In other words, Chevron stands for the proposition that an executive agency’s interpretation of a statute it administers is entitled to deference unless Congress has said otherwise.

In the case itself, James Kisor sought disability benefits for post-traumatic stress disorder arising out of his participation in the Vietnam War. The Department of Veterans Affairs (VA) ruled in 1983 that Kisor didn’t suffer from service-related Post-Traumatic Stress Disorder (PTSD). In 2007, the agency reversed that finding but refused to award him retroactive benefits.

Kisor argued that the VA’s determination was wrong. He asked the Supreme Court to overturn Auer v. Robbins (1997), a decision that analysts say works with Chevron to grow the power of executive-branch agencies.

So-called Auer deference “instructs courts that an agency’s interpretation of its own regulation is given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation,’” Christopher J. Walker wrote in the Georgetown Journal of Law & Public Policy.

Liberals have defended Auer deference for years, while conservatives have wanted to do away with it.

The court’s weak plurality opinion in the complex administrative law case, known as Kisor v. Wilkie, was written by Justice Elena Kagan. It was accompanied by a plethora of separate opinions, in which other justices concurred with Kagan in part and dissented in part.

Kagan defended stare decisis, which is the principle that courts shouldn’t upend previous rulings unless there is ample cause to do so. Stare decisis, she said, weighs “strongly” against overruling the Auer doctrine, which she said wasn’t merely one case, but “a long line of precedents—each one reaffirming the rest and going back 75 years or more.”

Overturning the doctrine at this time would inject “so much instability into so many areas of the law,” Kagan wrote, because the principles of Auer have been so widely adopted throughout the law.

Besides, Congress may pass a law to overrule Auer, if it wishes, she wrote.

“Instead, for approaching a century, it has let our deference regime work side-by-side with” federal administrative laws “delegating rulemaking power to agencies.”

Conservative justices wrote separately that the Auer doctrine is living on borrowed time.

“Auer requires judges to accept an executive agency’s interpretation of its own regulations even when that interpretation doesn’t represent the best and fairest reading,” Justice Neil Gorsuch wrote.

“This rule creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else,’” Gorsuch wrote, quoting from the Harvard Journal of Law and Public Policy.

“[T]oday’s decision is more a stay of execution than a pardon. … So the doctrine emerges maimed and enfeebled—in truth, zombified,” he wrote.

Kavanaugh wrote that he agreed with Gorsuch, “that the Auer deference doctrine should be formally retired.”

Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.