The Supreme Court’s decision to accept Kisor v. O’Rourke could severely limit the power of federal agencies.
For any American who is tired of a faceless bureaucrat controlling your life, the United States Supreme Court gave you an early Christmas present when they announced that they will hear a case that could drastically scale back the power of federal agencies. The case deals with Mr. Kisor, a Marine veteran, who sought disability benefits for his service-related post-traumatic stress disorder (PTSD). Although this case is a compelling story of a Marine veteran trying to receive benefits he was entitled to, this case has far reaching implications that affect every American, especially businesses and property owners. The reason this case is so important is that it is an opportunity for the Supreme Court to eliminate Auer Deference. Auer Deference is a rule the Supreme Court made in the 90s that federal agencies use to create a cocoon of unlimited and unsupervised power for themselves. These agencies can then use that power to control the lives of every American without any real oversight from the court systems or elected officials.
Auer Deference essentially requires a court to enforce an agency’s interpretation of its own rules, unless that interpretation is “plainly erroneous.” To understand how Auer Deference works it is important to understand how regulations are made.
Essentially regulations are made when Congress decides in a law that they want an agency to be in charge of a certain issue. For example, Congress in the 70s knew that it wanted to take steps to protect the environment, but it did not want the political ramifications of sometimes choosing to protect the environment by harming landowners and businesses. So instead of passing laws that clearly laid out how it wanted to protect the environment, Congress passed laws like the Clean Air Act, the Endangered Species Act, and the Clean Water Act, that were intentionally vague, and gave agencies like the EPA, the US Fish and Wildlife Service, and the US Forest Service the power to interpret and create regulations to protect the environment.
When Congress gives an agency the power to regulate something, they then have the authority to draft regulations laying out the rules and standards for the particular issue. Auer Deference incentivizes those agencies to draft obscure regulations which they will then be able to interpret. Then, if someone challenges the agency’s interpretation of a regulation, the court will automatically rule in the agency’s favor, unless the person can prove that the rule is “plainly erroneous.” Having to prove that a rule is “plainly erroneous” is nearly impossible. So an agency could create an absurd interpretation of a regulation it intentionally left vague, and there would be no recourse or protection against the agency enforcing that interpretation. Essentially, Auer Deference allows the people writing the rules to also interpret the rule (or in other words, the patients are running the rulemaking asylum).