Supportive Yet Skeptic: Kisor v. Wilkie Casts Further Doubt on Deference Doctrine’s Longevity

Michael Sammartino

 In Kisor v. Wilkie, the United States Supreme Court considered whether to retain its practice of deferring to an administrative agency’s interpretations of its own regulations. Despite decades-long conservative criticism of Auer v. Robbins deference’s constitutionality and appropriateness, the Kisor Court voted to retain Auer’s deference doctrine. While the Court’s decision reads as a fervent defense of administrative expertise, Kisor stops short of settling the question of whether the deference doctrine as a whole will ultimately survive the Roberts Court in a workable form. Kisor’s framework indicates an underlying distrust of the administrative state and suggests a further retreat from the Court’s more deferential administrative jurisprudence.

Despite upholding Auer deference, Kisor’s implications suggest further erosion of the Court’s deference doctrine. Part I will discuss Kisor’s procedural history. Part II will trace the history of the Court’s deference doctrine and the diverging historic precedents of Chevron U.S.A. Inc. v. Natural Resources Defense Council and Auer, with particular attention placed on the recent efforts to call deference doctrine into question. Part III will review Justice Kagan’s majority opinion, which upholds Auer deference, and Justice Gorsuch’s concurrence, which argues for Auer’s complete abandonment. Lastly, Part IV will argue that the Court’s decision realigns Auer deference with its historic precedent and redresses the constitutional issues on which Auer’s criticisms are based. Kisor’s framework, however, suggests how the Court may further narrow its deference doctrine, and, given the current ideological makeup of the Court, Kisor casts further doubt on deference doctrine’s longevity.