A Unitary Theory of Strict Deference

By Zach Huffman

Agencies can interpret ambiguous statutes and regulations due to their expertise in executing complex regulatory schemes and the presumption that, for certain issues, Congress prefers agencies, not courts, to retain such power. This proposition is commonly referred to as agency deference. A recent U.S. Supreme Court case, Kisor v. Wilkie, challenged a core principle of agency deference called Auer deference, which allows agencies to interpret ambiguous regulations so long as the agency’s interpretation of the regulation is not plainly erroneous or inconsistent with the regulation as a whole. While the justices vigorously debated whether Auer v. Robbins should have been overturned, Kisor stands for another principle. Kisor may have created a new deference standard that this Note calls “strict deference.” This Note argues that strict deference is a unitary deference standard, which can be applied beyond contexts implicating Auer. Given the Court’s concerns with another deference doctrine, Chevron deference, this Note hypothesizes how strict deference would function in a Chevron context by applying strict deference to three Chevron cases. This Note argues that, just as strict deference applies to Auer cases, it can also be a relevant standard for Chevron cases and one that addresses some of the criticism levied at agency deference in general.