Auer 2.0: The Disuniform Application of Auer Deference After Kisor v. Wilkie

By Daniel Lutfy

This Note examines how lower courts have applied Auer deference after the U.S. Supreme Court’s decision in Kisor v. Wilkie. The Court granted certiorari in Kisor to answer one question: whether to overturn the deference regimes created by Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. The Court upheld the doctrines and clarified their reach, limits, and proper application. This Note focuses on Kisor’s holding regarding the extent judges must scrutinize a regulation before concluding it is ambiguous. Despite the Court’s attempt to explicate a standard, lower courts have demonstrated stark differences in regulatory interpretation before concluding a regulation is ambiguous for the purposes of Auer deference. This Note highlights that disuniformity, explains its cause, and offers its own interpretation of Kisor v. Wilkie.

This Note also identifies two causes of the disuniform application of Kisor. First, different judges have different ideas of what “ambiguity” means. A regulation that is 75 percent clear may be ambiguous to some judges but unambiguous to others. Without resolving this problem, the Court used conclusory terms to characterize the level of regulatory interpretation lower courts should engage in. Those terms include “rigorous” and “exhaustive.” Two courts can engage in the same “rigorous” or “exhaustive” regulatory interpretation but disagree on whether the result of that process means a regulation is “ambiguous.”

Second, the Court raised two competing values but did not clarify how to resolve them. Competing with the requirement of “exhaustive” regulatory interpretation is the idea that a deference regime facilitates the judiciary’s respect for an agency’s policy discretion. But how does a court exhaustively interpret a regulation and simultaneously defer to an agency’s policy discretion? While the Court raised these two competing factors, it never clarified how they precisely interact.