The Impact of Kisor on Auer Deference: Affirmation, or Stay of Execution? [CC]

The Impact of Kisor on Auer Deference: Affirmation, or Stay of Execution? [CC] — CLE 90 min

Join a panel of distinguished experts as they discuss the impact of Kisor on Auer deference: affirmation, stay of execution, or something in between? The panel is joined by a sitting DC Circuit judge as they examine this question, and offer their insights into how courts, agencies, and practitioners should approach the interpretation of agency regulations in the aftermath of Kisor.

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Closed Captioned. One of the most anticipated administrative law cases in recent years, Kisor v Wilkie, decided on June 26, 2019, may also be one of the most contentious Supreme Court decisions ever to be decided by a unanimous vote. The sole question in Kisor was whether the Court should overrule a line of cases which holds that judges should defer to reasonable agency interpretations of their own regulations if those regulations are ambiguous on a particular issue – a doctrine known as “Auer deference” after the landmark case in which the Court employed it. In Kisor, the Court decided not to reject the rule but to “reinforce its limits.” Justice Kagan offered these limits as a clarification of existing practice. But four conservative justices, led by Justice Gorsuch, concurred only in the judgment and opined that the limitations imposed by the majority decision so attenuate Auer deference as to render Kisor more like a “stay of execution” for Auer than a true affirmance. The concurring justices also made clear that they actually would have preferred an execution. Chief Justice Roberts cast the swing vote to not overrule Auer. He did so out of respect for precedent, he explained in his concurrence, and because he agrees with the limits articulated by the majority. They will also discuss, in a more speculative vein, what the fault lines evident in the Kisor decision may portend for the future of Chevron deference.

Moderators

Richard W Parker

Panelists

Allyson N Ho, Gillian E Metzger, Ginger Anders, Kristin E Hickman

Sponsors

Section of Administrative Law and Regulatory Practice

Product Code

AL1911KADOLC

Duration

90

Publication Date

11/14/2019 12:00:00 AM

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