The Waning Future of Judicial Deference

The doctrines of judicial deference to an agency’s interpretation of rules and implementation of law are core principles of administrative law. The Supreme Court established and expanded these doctrines in the cases from which they received their names. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Court held that if Congress has not spoken to the precise question at hand, the agency has the discretion for interpretation so long as the interpretation does not violate explicit statutory or constitutional requirements or exceed the authority Congress granted the agency.[1] Following Chevron, the Court revisited this deference toward agencies in Auer v. Robbins, which called for an increased level of deference to an agency’s interpretations of its own rules or regulations.[2] The resulting Auer doctrine takes judicial deference a step further than the Chevron analysis. Auer is narrow, applying to an agency’s interpretation of its own rules.[3] These two rulings solidified the Article I and III requirements that the federal judiciary does not legislate; rather, it examines challenges to statutes to see if they violate the principles and requirements of the U.S. Constitution.[4] This 35 year-old doctrine has been thrust into the judicial spotlight once again and now runs the chance of being eradicated completely by the Supreme Court’s pending ruling in Kisor v. Wilkie.[5] The Kisor decision, characterized by Justice Breyer as the “greatest judicial power grab since Marbury v. Madison,” has the potential to completely reshape how the Court approaches deference if enough Justices desire to do away with judicial deference.[6]

Despite the hefty judicial history behind Chevron and Auer, these doctrines have received repeated criticism—at times even from their authors—that has only intensified with the addition of Supreme Court Justices Gorsuch and Kavanaugh.[7] Justice Gorsuch, in a March 2019 dissenting opinion for BNSF Railway Co. v. Loos, applauded the involved parties’ lack of reliance on the Chevron doctrine.[8] BNSF, when addressing an injured party’s challenge to its refusal to raise his personal injury damages to mitigate taxation of the damages, did not quote the IRS’s interpretation of tax statutes, even though the interpretation was friendly to BNSF’s argument.[9]  In fact, as Justice Gorsuch notes, BNSF’s attorneys “hated” even mentioning Chevron.[10] Justice Gorsuch stated his concern that any Chevron analysis is subject to the change of mind of the government, implying the courts could make no real, lasting analysis of those regulations.[11] While his comments in BNSF Railway were not Justice Gorsuch’s first stating such a concern in his capacity as a Supreme Court Justice, it was not a new concern.[12] Justice Gorsuch’s two arguably best-known administrative law cases that he encountered on the Tenth Circuit, Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch, contained weak Chevron arguments from the government.[13] In both cases, the Board of Immigration Appeals (BIA) changed the agency rules on immigration and then applied those rule changes to the appellants retroactively.[14] The BIA’s changes were not evidenced by agency expertise, thus precluding the agency from being able to accurately assert Chevron deference.[15] Justice Gorsuch, in unanimous opinions, highlighted the attempted application of Chevron as a stark example on how agencies abuse Chevron to justify overreaching actions. [16]

Justice Kavanaugh’s criticism of Chevron is not as overt or developed as Justice Gorsuch’s – a self-perceived limitation Justice Kavanaugh readily admits.[17] Justice Kavanaugh argues in one law review article that the Chevron doctrine stands in direct opposition to the Administrative Procedure Act, which is the leading statute that governs how the federal administrative agencies regulate.[18] Congress, by passing the Administrative Procedure Act, vested the Court with the power to “interpret … statutory provisions” and overturn agency action inconsistent with those interpretations.[19] For Justice Kavanaugh, this interpretive power cannot exist parallel to the interpretive power Chevron grants to agencies.[20]

Both Justices Gorsuch and Kavanaugh have articulated the belief that Chevron deference is a renunciation of the Article III duty to interpret statutes and laws independent of agency interference.[21] Their concern of a dissolution of the mandated separation of powers goes as far as to assert Chevron deference aggrandizes the power of the executive branch and its related agencies at the expense of Congress’s Article I powers to legislate.[22]

These growing tensions led to Kisor v. Wilkie.[23] James Kisor, a Vietnam War veteran, filed petition for writ of certiorari in 2018 after being initially denied disability benefits from the U.S. Department of Veterans Affairs (VA) in 1983.[24] He was later granted benefits in 2006 after presenting new documentation of post-traumatic stress disorder, though he was not provided any back benefits from 1983 through 2006.[25] The VA interpreted its own rules in providing these benefits, citing Auer deference.[26] The case was argued in front of the Supreme Court on March 27, 2019.[27] During oral arguments, it is perhaps unsurprising Justice Gorsuch did not seem persuaded by the government’s assertion of deference or its attempt to create a new deference test.[28] In response to the Solicitor General’s argument for the government, Justice Gorsuch noted his trust for the expertise of the judiciary over the agency.[29] This comment received pushback from Justice Breyer, who asserted that judges cannot be experts in all fields and are less democratically accountable than agencies.[30]

After the close of oral arguments, the divide in the court was palpable.[31] Equally, it is apparent every Justice is aware of the weight this opinion will carry.[32] Considering the Auer doctrine takes judicial deference a step further than Chevron, the Court may choose to eliminate the broader Chevron doctrine and render the narrower Auer doctrine similarly obsolete. In a similar path, the Court may not explicitly overturn judicial deference; some Justices may simply choose to stop relying on Chevron and Auer. Should those Justices author concurring opinions or dissents stating they will no longer rely on Chevron or Auer deference, agencies would be forced to adapt and limit their own reliance on these deference doctrines to fully address the Justices’ concerns. Regardless of the extent to which the ultimate Kisor ruling will affect Chevron and Auer, the future of judicial deference continues to dim.


[1] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984).

[2] Auer v. Robbins, 519 U.S. 452, 457–58 (1997) (holding an agency’s interpretation is valid so long as it is not “plainly erroneous or inconsistent with the regulation”).

[3] Auer v. Robbins, 519 U.S. 452, 457–58 (1997).

[4] U.S. Const. arts. I, III.

[5] Adam Liptak, Limiting Agency Power, a Goal of the Right, Gets Supreme Court Test, N.Y. Times (Mar. 27, 2019), https://www.nytimes.com/2019/03/27/us/politics/supreme-court-agency-power.html.

[6] Id.

[7] See Auer, 519 U.S. at 454 (1997) (majority opinion); Michael McConnell, Kavanaugh And The “Chevron Doctrine,” Hoover Inst. (July 30, 2018), https://www.hoover.org/research/kavanaugh-and-chevron-doctrine (distinguishing Justice Scalia’s earlier support of judicial deference with the growing criticism from recent Justices and opinions). But see Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., concurring) (suggesting that Auer doctrine violates the Administrative Procedure Act).

[8] BNSF Ry. Co. v. Loos, No. 171042, slip op. at 8 (U.S. Mar. 4, 2019) (Gorsuch, J., dissenting).

[9] Id.

[10] Id.

[11] Id.

[12] Alison Frankel, The (other) attack on Chevron deference, Reuters (Dec. 8, 2017), https://www.reuters.com/article/frankel-chevron-otc/the-attack-on-chevron-deference-idUSKBN1E22SM.

[13] Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1143–45 (10th Cir. 2016); De Niz Robles v. Lynch, 803 F.3d 1165, 1171 (10th Cir. 2015).

[14] Guiterrez-Brizuela, 834 F.3d at 1142–43; De Niz Robles,803 F.3d at 1167.

[15] Id.

[16] Gutierrez-Brizuela, 834 F.3d at 1143–45; De Niz Robles, 803 F.3d at 1171.

[17] Brett Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 (2016).

[18]  Id. at 2150. See generally Administrative Procedure Act, 5 U.S.C. § 500 (2019).

[19] Administrative Procedure Act, 5 U.S.C. § 706 (2019).

[20] Brett Kavanaugh, supra note 19, 2150-53.

[21] Michael McConnell, supra note 5.

[22] Id.

[23] Kisor v. Shulkin, 869 F.3d 1360, 1361 (Fed. Cir. 2017), cert. granted in part sub nom. Kisor v. Wilkie, 139 S. Ct. 657 (2018).

[24] Id. at 1362.

[25] Id. at 1362-38.

[26] Id. at 1367.

[27] Kisor v. Wilkie, No. 18-15 (U.S. argued Mar. 27, 2019).

[28] Transcript of Oral Argument at 5, 33, Kisor v. Wilkie, 139 S. Ct. 657 (2019) (No. 18–15) (dismissing the efficiency of the Solicitor General’s proposed six-prong deference test, which involved looking to see whether the regulation is ambiguous, whether the regulation is reasonable, whether the regulation is consistent, whether the regulation was made by someone at a high level, whether there was fair notice of the regulation, and whether the regulation was made by somebody with expertise).

[29] Transcript of Oral Argument at 34–35, Kisor v. Wilkie, 139 S. Ct. 657 (2019) (No. 18–15).

[30] Transcript of Oral Argument at 21–23, Kisor v. Wilkie, 139 S. Ct. 657 (2019) (No. 18–15).

[31] Adam Liptak, Limiting Agency Power, a Goal of the Right, Gets Supreme Court Test, N.Y. Times (Mar. 27, 2019), https://www.nytimes.com/2019/03/27/us/politics/supreme-court-agency-power.html.

[32] Id.

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