Title

Symposium: The Puzzling and Troubling Grant in Kisor

Document Type

Blog Post

Publication Date

2020

Center/Program

Center for Constitutional Governance

Abstract

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying review of several subsequent petitions raising the issue and failing to engage with Auer in some cases it did grant. But against this background it seems hardly unexpected that the court granted cert in Kisor to decide Auer’s fate.

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