Kisor Deference

by Aaron Nielson — Wednesday, June 26, 2019@Aaron_L_Nielson

When Notice & Comment hosted its two-week symposium on Seminole Rock deference, I insisted on calling it “Seminole Rock” rather than “Auer.” This stubbornness drew hoots from my more nouveau friends but I didn’t see any reason to start using a new name, especially because my sense was that Seminole Rock was still used as often as Auer. To me, the best argument in favor of a change was the fact that Auer isn’t really the same thing as Seminole Rock; it is “Seminole Rock on steroids.” But I’m old fashioned. So we went with the original.

Today, I learned that was a mistake — at least in Justice Kagan’s eyes. She says the name changed: “Before the doctrine was called Auer deference, it was called Seminole Rock deference.” So I guess it is Auer now.

But if we are going to change names, why stop with Auer? After all, the version of “Auer” that the Court created today is so far removed from how Auer was understood yesterday that isn’t really accurate to call it Auer anymore. As explained by Chris Walker, the new “Auer” is a narrower, more limited doctrine, with more safeguards, and many more steps. If courts apply yesterday’s deference to tomorrow’s cases, they will err — things have changed. The best way to avoid such error would be to also change names.

So here’s my proposal: Let’s call it Kisor deference.

We know that names change; Kisor itself acknowledges this. We also know that Kisor deference differs from Auer deference; indeed, Kisor — in Justice Kagan’s words — “restate[s], and somewhat expand[s] on” what came before, in an effort to “clear up some mixed messages.” So we should call Kisor deference what it is — something new. Auer is dead and gone. What we have instead is Kisor deference.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is a professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

One thought on “Kisor Deference

  1. Mark Chenoweth

    Isn’t it a bit obscene to call it Kisor deference when Mr. Kisor is not the one who got–or will get–the deference? It’s bad enough that Mr. Kisor has to suffer the indignity of having his right to benefits determined by the Executive Branch rather than the Judicial Branch. But perhaps he could at least be spared kicking dirt in his face by naming the doctrine after him. All deference doctrines should be named after the government agency or bureaucrat who gets the deference. That naming convention will at least remind everyone what is really going on in these cases. Henceforth, the new Auer deference should be termed “Wilkie deference.”

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