This week the Supreme Court is likely to issue an opinion in Kisor v. Wilkie, a case that could potentially overturn what is known as “Auer deference.” For the legal commentariat, this is a big deal. But those that don’t spend their time buried in administrative or environmental law blogs may be wondering what all the fuss is about. The property rights attorneys at Kassouni Law will elucidate.
John Locke famously argued that humanity comes out of a state of nature and submits to government largely because it needs a neutral arbiter to decide and enforce disputes about property rights. In 1795, the United States Supreme Court echoed this sentiment in Van Horne’s Lessee v. Dorrance, noting that the “preservation of property [through a neutral arbiter] is a primary object of the social compact,” and that “no man would become a member of a community” where that right was not protected.
Yet, for the past twenty years, U.S. Courts have been anything but neutral arbiters when deciding disputes between property owners and government administrative agencies. Under what has become known as “Auer deference”—named after the Court’s decision in Auer v. Robbins—courts are required to defer to government agency interpretations of contested regulations, even if the court concludes that the agency’s interpretation is likely not correct, provided that the agency interpretation is not “absurd.”
This is more important than it sounds. A substantial number of disputes between federal environmental agencies and private property owners turn on the interpretation of agency regulations because those regulations often delineate the scope of the agency’s authority over private property. For example, the Clean Water Act grants the Army Corps of Engineers jurisdiction to prohibit development in “Waters of the United States.” The Corps has subsequently passed regulations defining Waters of the United States to include property “adjacent” to navigable waters. Accordingly, if the Corps determines that a property is “adjacent” to a navigable water, then the owner effectively loses the right to develop it.
Given these high stakes, “adjacency” determinations are often disputed. And when a property owner disputes such a claim, he rightly expects that the judge will evaluate the law in a neutral manner. Under Auer, however, the court is required to “defer” the agencies position unless it is “wholly unreasonable.” The property owner thus comes to court with the judge already placing a thumb heavily on the side of the scale favoring the government agency that has usurped a property owner’s rights.
In recent years, at least five members of the current Supreme Court have separately questioned the fairness and constitutional validity of Auer deference. As these justices have noted, Article III of the Constitution gives the courts the responsibility and duty to “say what the law is.” By contrast, Auer effectively forces courts to abdicate their interpretive authority to unelected administrative officials.
Given these prior statements, Court watchers have long thought that Auer may be overturned the next time that it comes before the Court. Enter the case of Kisor v. Wilkie. The actual facts of the case are less relevant than the fact that the plaintiffs have asked the court to overturn Auer. Most believe that the court will take that leap, but there is some reason to believe it may not.
Overturning Auer would require all five “conservative” justices to vote as a bloc—Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. The four “liberal” justices—Ginsburg, Breyer, Sotomayor, and Kagan—have all expressed a desire to keep Auer in place.
Keeping all five conservative justices locked in may be difficult. Historically, Kavanaugh has argued for narrowing (not overruling) agency deference doctrines under what he calls the “major questions doctrine.” Under the major questions doctrine, courts would still defer to government agency interpretations in ordinary cases, but would give statutes and regulations a closer look in cases that involve major questions about division of power, or could have huge impacts on the national economy. The idea behind the major questions doctrine is that the court should not assume that Congress delegated important policy decisions to unelected government agency officials unless it has done so explicitly.
This narrowing approach probably also has some appeal to Justice Roberts. Roberts has expressed concern that overturning precedents along 5-4 ideological lines could impact the perceived legitimacy of the court. If a narrowing-vs-overturning approach to Auer could pick up a sixth vote from one of the more moderate liberal justices, like justice Breyer, one can easily imagine Justice Roberts drafting a narrow opinion that limits Auer vs. overturning it.
Ultimately, we won’t have to wait that long to find out. The Court generally releases all of its opinions by the end of June.