The U.S. Supreme Court is considering whether to limit the power of administrative agencies. Kisor v. Wilkie, which was argued last month, is a head-on challenge to the deference afforded to an agency when interpreting its own regulations. In their recent publication for The Legal Intelligencer, Leigh Ann and Stephen discuss the challenge from petitioner James Kisor on Auer v. Robbins, a unanimous decision written by the late Justice Antonin Scalia, the court held that an agency’s interpretation of its own regulations should control if its interpretation is not plainly erroneous or inconsistent with the regulations. Now, just 22 years later, the court seems willing to reconsider this decision. Kisor asserts that Auer runs afoul of the Administrative Procedure Act (APA). In particular, he argues that it eviscerates the notice and comment requirements and contravenes with the “basic principles of predictability and public notice” that are the heart of the APA. He also argues the effect of Auer is out of line with basic principles of separation of powers. Under Auer, he argues, the law-making and law-interpreting is performed by the same branch with unchecked authority.
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