April 01, 2020

Auer Deference After Kisor: Alive or “Zombified”?

Thomas Lorenzen

For well over a century the federal courts have deferred to agencies’ reasonable interpretations of their earlier, ambiguous regulations. This principle is known as Auer deference. See Auer v. Robbins, 519 U.S. 452 (1997). Conservative scholars and jurists have long chafed at Auer deference, both as a violation of the U.S. Constitution’s separation-of-powers provisions and of the Administrative Procedure Act’s requirements that the public be provided notice of and an opportunity to comment on changes in regulations. Thus, when the Supreme Court last term took up Auer deference in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), many (me included) thought the demise of Auer was at hand.

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