High court upholds precedents on deference to agencies

WASHINGTON (AP) — The Supreme Court on Wednesday rejected a conservative push to limit the power of federal agencies.

The high court declined to overrule two past cases that had been criticized by conservatives as giving unelected officials vast lawmaking power. But the way the justices clarified the older rulings led one justice to suggest that while the cases hadn’t been overruled they’d been left “on life support.”

Chief Justice John Roberts broke with his more conservative colleagues and joined the court’s four liberal justices in refusing to overrule the earlier cases. The court’s other conservatives were ready to, in the words of Justice Neil Gorsuch, “say goodbye” to the decisions.

The issue of overturning precedents is front and center during this term of the court as observers are watching to see how far and how fast a newly more conservative court is willing to go in its decisions. The court’s ruling was something of a surprise because when the court takes a case with the specific purpose of reconsidering whether to overrule a past decision it is generally a signal it is ready to do so.

The case the court was considering has to do with how courts should respond when an agency — such as the Transportation Security Administration or Mine Safety and Health Administration — writes a regulation that is ambiguous. Previous cases said judges should defer to an agency’s interpretation of its own ambiguous regulation if the interpretation is reasonable.

Justice Elena Kagan wrote that the approach makes sense: “Want to know what a rule means? Ask its author.”

Kagan, writing for a majority of the court, reiterated that an agency has “significant leeway to say what its own rules mean.” But she also explained the limits of when deference applies, noting among other things that the agency’s reading must still be reasonable and deference shouldn’t apply unless the regulation is genuinely ambiguous.

Conservatives have criticized the Supreme Court’s deference decisions for some time. Before his death three years ago Justice Antonin Scalia, who himself wrote the unanimous 1997 Auer v. Robbins decision the court was being asked to overrule, said it should be abandoned. Some of his conservative colleagues similarly questioned the decision and one from 1945 that preceded it, Bowles v. Seminole Rock & Sand Co.

Gorsuch wrote for himself and three fellow conservatives that it should have been easy for the justices to “say goodbye to Auer v. Robbins.” Instead, he said his colleagues left it on “life support.” He said the “new and nebulous qualifications and limitations” that his colleagues in the majority imposed mean the doctrine of agency deference “emerges maimed and enfeebled — in truth, zombified.”

The specific case before the justices involved Vietnam veteran James Kisor. Kisor has been diagnosed with post-traumatic stress disorder and has tangled with the Department of Veterans Affairs over disability benefits. Kisor said he should get benefits back to the 1980s while the VA, interpreting its own regulation, disagreed, saying he should only get benefits back to 2006. The justices sent Kisor’s case back to a lower court to be reviewed in light of the court’s decision.

The case is 18-15, Kisor v. Wilkie.


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