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Auer of Legal Reckoning


The Supreme Court building in Washington, D.C.

The Supreme Court building in Washington, D.C.


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karen bleier/Agence France-Presse/Getty Images

Good news for critics of the willy-nilly expansion of the administrative state: On Monday the Supreme Court announced that it will hear a legal challenge to two of its precedents that defer to agency interpretations of ambiguous regulations.

In Kisor v. Wilkie, the Justices will consider if Veterans Affairs properly interpreted the word “relevant” to deny Marine veteran James Kisor benefits for post-traumatic stress disorder. The case is notable because in granting certiorari the Court limited the question to whether it should overrule Auer v. Robbins (1997) and Seminole Rock & Sand Co. (1945).

Regulators have cited those precedents, as well as the Court’s

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deference standard, to justify more or less anything they want to do. The Justices have previously declined to reconsider those precedents despite hints from Chief Justice John Roberts and Justice Samuel Alito in other opinions that perhaps courts have granted too much discretion to regulators.

But with the arrival of Justices Neil Gorsuch and Brett Kavanaugh, this judicial reconsideration may finally be on. It’s unlikely the Justices would have agreed to hear Kisor merely to reaffirm those precedents. Strangely, the Trump Justice Department asked the Justices not to hear the case, but the new Court majority may soon pay its first liberty dividend.



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