Supreme Court rules in favor of federal agency expertise on ambiguous regulations

Listen to this article

WASHINGTON — The Supreme Court on Wednesday upheld a long-standing precedent that says judges should generally defer to a federal agency’s expertise when ambiguous regulations are challenged.

But the court’s conservatives, who have said that that gives too much power to unelected bureaucrats, said the decision was “more a stay of execution than a pardon.”

Chief Justice John Roberts joined the court’s liberals to preserve the precedent. But he, too, said the vote should not be seen as a signal that deference to what conservatives call the “administrative state” is settled.

The court did not deliver opinions on the most important remaining decisions of the term: whether to uphold rulings finding partisan gerrymandering in North Carolina and Maryland, and whether to allow the Trump administration to put a question about citizenship on the 2020 census form sent to all households.

The justices said the last day of the term will be Thursday.

Justice Elena Kagan wrote the opinion that preserves Auer v. Robbins, a ruling that the late Justice Antonin Scalia wrote for a unanimous court in 1997.

But in announcing the decision, she said the court for nearly a century “has often deferred to agencies’ reasonable interpretations of their own ambiguous regulations.”

That is based on the presumption that Congress would want an agency with a deeper understanding of the issue than judges, to be the most appropriate interpreter of its own rules.

But she stressed judges should defer only when the regulations are truly ambiguous and the agency’s interpretation is reasonable.

A military veteran who objected to a Department of Veterans Affairs decision regarding disability benefits and then lost in federal court, told the justices they should overturn Auer and a case decided in 1945, Bowles v. Seminole Rock and Sand Co.

But Kagan, who has been the court’s most fierce defender of it abiding by its precedents, said the military veteran and others who objected to the deference did not make the case.

“The principle of stare decisis — in English, letting decisions stand — is an important one for stability and evenhandedness in the law,” she said. “To overrule a case, we need a special justification.”

Nonetheless, she said, the court felt that the lower court, in the case of veteran James Kisor, did not properly analyze whether the regulation he contested was truly ambiguous. It should look again, she said.

She was joined in the opinion protecting the precedent by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Roberts joined in part.

Justice Neil Gorsuch wrote a fiery, 42-page denunciation of the Auer precedent that was mostly joined by fellow conservatives Clarence Thomas, Samuel Alito and Brett Kavanaugh.

“This rule creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else’,” Gorsuch wrote, quoting a law review article.

But home builders and manufacturers are among those asking the court to get rid of Auer, saying that changes in administrations lead to shifts in how agencies interpret regulations and open them to new liability. Those rules can cover areas including workers’ tips and environmental standards.

Gorsuch said even Scalia said he thought the precedent should be overturned, and criticized Roberts and the liberals for the “flinch” that kept it alive.

“Retaining even this debilitated version of Auer threatens to force litigants and lower courts to jump through needless and perplexing new hoops and in the process deny the people the independent judicial decisions they deserve,” Gorsuch wrote. “All to what end? So that we may pretend to abide stare decisis?

The case is Kisor v. Wilkie.

– – –

Juries and criminal sentencing

Gorsuch joined the liberals in ruling against the government and affirmed the central role of juries in imposing criminal penalties in the federal court system.

Gorsuch ruled in favor of a sex offender who said he was improperly returned to prison by a judge — instead of a jury — after violating the terms of his release.

“This court has long recognized that penalties for supervised release violations arise from and are treated as part of the sentence for the original criminal offense,” Gorsuch said in announcing the opinion.

“If the government were correct, you could be convicted of even a modest crime and put on supervised release for the rest of your life. Then a judge, acting without a jury and under a preponderance of the evidence standard, could convict you of a violation and sentence you to just about anything. That cannot be right.”

In his dissent, Alito said the court’s narrow ruling could eventually lead the entire concept of supervised release to “come crashing down.” Requiring a jury to review all possible violations, he wrote, is unrealistic and unworkable in the nation’s federal court system.

In 2018, he noted federal courts completed 1,809 criminal jury trials. In the same year, the courts reviewed 16,946 revocations of supervised release.

“Under the plurality opinion, the whole system of supervised release would be like a 40-ton truck speeding down a steep mountain road with no brakes,” wrote Alito, who was joined by Roberts, Thomas and Kavanaugh.

The case is United States v. Haymond.