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The Supreme Court ruling maintains the Auer rule, which strengthens the regulators



The US Supreme Court building will be in Washington, DC on Tuesday, January 22, 2019.

Al Drago | Bloomberg | Getty Images

The Supreme Court on Wednesday refused to overturn a precedent that strengthens the power of state regulators in a closely watched case that could have far-reaching implications for federal agencies.

The precedent is known after the case of Auer against Robbins of 1997 as "Auer-Reverence". Since Auer, the Supreme Court has ruled that the courts should postpone the agencies' interpretation of their own rules if these rules are ambiguous.

The Supreme Court maintained the precedent, but did so by imposing restrictions. In view of these restrictions, the court cleared a federal appeals court against a naval veteran who claimed to have been injured by Auer and ordered the case to be re-examined.

"The reverence of Auer continues to play an important role in the interpretation of the rules of the authority," wrote Judge Elena Kagan, who delivered the opinion of the court. "But even if we cling to it, we are strengthening its boundaries."

Kagan relied heavily on the "rigid decision" rule of law, which places a high hurdle on decisions that override the court's previous judgments. She suggested that a reversal could be particularly serious because of Auer's broad reach: "It's the rare override that brings so much instability into so many areas of law in one fell swoop," she wrote.

But the Conservatives of the Court of Auer, who agreed with Kagan's verdict but signed a separate statement to explain their argument, was unwise. Justice Neil Gorsuch, who was skeptical of Auer, wrote in a concurring statement that, as long as the rule holds, "the doctrine appears mutilated and weakened ̵

1; truly zombified."

Justice John Roberts signed parts of Kagan's majority opinion as the fifth vote. Roberts also wrote a separate, concurring statement suggesting that the distance between Kagan and Gorsuch "is not as great as it may seem at first."

Read more: In this case, economic, labor and immigration groups have joined forces. However, some see a right-wing attack on government regulation.

Kagan emphasized that the interpretation of a government agency can only be valid if it is reasonable, binding and based on expertise. Roberts wrote that these restrictions are essentially the same ones that Gorsuch had suggested, though Gorsuch wrote that a judge and not the agency should have more authority to make the final call.

"The formal rejection of Auer would have been a more direct approach," wrote Judge Brett Kavanaugh in a concurring statement. But he wrote that the restrictions that Kagan found "should in most cases lead to the same public destination".

The Court's decision to retain Auer in part because it is a precedent is important for reasons beyond the authority's loyalty.

The judges have argued about the importance of this precedent. The affair has gained a higher profile thanks to the new reliable conservative majority in the court following the reaffirmation of Kavanaugh, Trump's second Supreme Court nominee.

Liberal court observers expressed concern that the court could reverse a precedent: The groundbreaking verdict of Roe v. Wade of 1973, which banned state abortion bans. Both Kavanaugh and Gorsuch, Trump's first choice, have said they consider Roe dead.

Marine Veteran applied for disability payments in the 1980s.

The issue involved a naval veteran, James Kisor, who argued that the Department of Veterans Affairs owed him 1980's retroactive disability benefits to cover post-traumatic stress disorder treatments he developed from engaging in particularly ferocious fighting in Vietnam.

Veterans Affairs argued that Kisor's provision was only to grant benefits from 2006. A federal appeals court considered this interpretation binding for Auer and ruled against Kisor.

The Supreme Court reversed the decision of the Court of Appeals, with Kagan stating that the court "too quickly assumed that the Auer restraint should apply".

In a statement, Kisor's attorney Paul Hughes said the verdict was a "significant victory," even though the court kept Auer.

"Today's decision will severely curtail the agency's authority," Hughes wrote.

Kisor had argued that the Supreme Court should overthrow Auer and said it lends too much power to government bureaucrats.

This argument united an unusual coalition of economic, labor, and immigrant rights groups, all of whom wrote briefings calling on judges to reject Auer.

Despite this unity, some scientists and democratic legislators considered the case orchestrated as part of a broader strategy by conservative legal entities to regain the power of regulators.

"This case is being heard before the Court as part of a broader strategy to deactivate the regulation of public interest," wrote Senator Sheldon Whitehouse of Rhode Island in a brief case before the Supreme Court.

The case is formally known as Kisor vs. Wilkie No. 18-15.


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