This week the Supreme Court set oral argument in Kisor v. Wilkie for March 27th. Kisor presents the question whether the Court should overturn Auer deference — the doctrine that commands courts to defer to an agency’s interpretation of its own regulation so long as it is not plainly inconsistent. Last year I published a short essay that outlines the challenges to Auer (and Chevron) deference, and my co-blogger Aaron Nielson organized a fantastic and extensive symposium here on the doctrine, with all of the contributions collected here. Based on how many folks have weighed in already, expect many amicus briefs in Kisor, including a fair number of law professor amicus briefs.
One issue, however, has not received much attention to date: what role should stare decisis play in considering whether to overrule Auer deference. In Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, which is forthcoming in the Texas Law Review, Randy Kozel argues that stare decisis should pose no barrier to overturning Auer (or Chevron) deference.
Here is the abstract:
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are articulated at high levels of generality, cut across numerous contexts, and dictate the inferences that future Justices must draw from congressional and administrative ambiguity. Taken in combination, these factors give rise to a strong argument that deference regimes like the Chevron and Auer doctrines fall outside the bounds of stare decisis.
You can read the draft of the paper here.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.