Kisor v. Wilkie

2nd=Good+Substantial said:

How would overturning "defer[ing] to an agency’s reasonable interpretation of its own ambiguous regulation" apply to MSP's interpretation of "good and substantial"? If successful, could this federal decision be used to argue against MSP capriciously saying "we know it when we see it"?

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Blacksmith101 said:

Interesting that Justice Sotomayor just asked for Responses in the Bump Stock stay petition that touched on some of the same points.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18a963.html

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The Supreme Court’s two newest justices led the way at arguments Wednesday in a case poised to upend a core tenet of administrative law.

As is common of many a Trump appointee, Justices Neil Gorsuch and Brett Kavanaugh came to the bench as known skeptics of federal agency power, and that skepticism was on full display morning.

The case concerns Auer deference, so named after a 1997 decision, under which courts an agency’s interpretation of its own ambiguous regulation gets court deference, so long as the interpretation is not “plainly erroneous or inconsistent.” Before Auer, the doctrine was first set out in a World War II-era case and known as Seminole Rock.

Like its relative Chevron deference, Auer deference goes directly to the power of administrative agencies, making it the target of conservatives who argue it raises separation-of-powers concerns.

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motorcoachdoug said:

It is very interesting to read and wondering what do our own legal eagles think?

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esqappellate said:

Basically right. As someone who invoked Chevron and Auer deference at every opportunity while at DOJ for 33 years, after Kisor, Auer deference is but a shallow of what it was before Kagan's opinion. I still prefer Gorsuch's approach. Chevron is also now in play as well. I doubt that it will be overruled, but will be steadily narrowed. Gorsuch is keeping them honest. Got to love his rather libertarian approach to the law. It is causing heartburn for both the conservatives and the liberals on the Court.

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Allen65 said:

I can't understand how Chevron was ever considered compatible with due process and the concept of judicial fairness. In effect, it requires a court to be prejudiced in favor of one party's position even before any evidence has even been presented merely because that party is the Government.

Wasn't a core founding concept of our system of government Separation of Powers, with each branch serving as a check on the others? Deference turned the Judicial Branch into a defacto rubber stamp for the other two, especially the Executive Branch.

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