On June 26, 2019, the U.S. Supreme Court issued a decision on Kisor v. Wilkie, ruling to uphold the controversial legal precedent known as “Auer deference,” under which courts defer to federal regulators’ own (and reasonable) interpretations of the agencies’ rules when regulations are ambiguous. Auer deference, which came out of the 1997 Auer v. Robbins case, has been criticized in recent years as violating the Administrative Procedure Act and infringing upon the constitutional separation of powers. In Kisor v. Wilkie the Department of Veterans Affairs’ authority to interpret a rule regarding disability benefits was challenged by Vietnam War veteran, James Kisor and the case therefore sought to overturn Auer.
In a 5-4 vote, Chief Justice John Roberts provided the fifth and deciding vote out of respect for precedent, but did not join the entire court opinion written by Justice Elena Kagan. In the opinion, Justice Kagan wrote “Auer deference retains an important role in construing agency regulations.” She also stated “even as we uphold it, we reinforce its limits” and went on to emphasize the limitations of the power granted by Auer.
Following the high court’s ruling, Kisor’s case will now be sent back down to the lower courts for further review.