Kagan and Gorsuch Square Off Over Agencies Prerogatives

July 31, 2019

A major conflict has erupted between Justices Elena Kagan and Neil Gorsuch over the issue of judicial deference to federal agencies’ interpretation of regulations. Central to their disagreement is the question of whether a Supreme Court precedent, Auer v. Robbins (1997), should be kept in place by the justices or struck down in its entirety. In Auer, the Court held that when an “ambiguous” regulation promulgated by a federal agency is challenged in court, the judge should respect the expertise of the agency and its staff and defer to the agency’s interpretation of its own regulation. An agency’s interpretation, said the Court, is “controlling unless plainly erroneous or inconsistent with the regulations being interpreted.” Critics argue that the doctrine tells judges to stop doing their judicial duty. In June a case was decided in which the Court was asked to overrule Auer. Kagan wrote a narrow majority opinion that just barely saved it from total destruction. In his dissent, Gorsuch wrote that 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,” and creates a systematic judicial bias in favor of the federal government against everyone else. When the next big case testing the bounds of judicial deference reaches the Supreme Court, it will be Kagan and Gorsuch drawing the battle lines.

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