This case hasn’t received much attention and will be lost from sight with the release of high profile opinion’s later this morning.
But yesterday’s (6/26/19) decision in Kisor v Wilkie, while on the surface appearing to be a victory for the administrative state, on much closer examination turns out to be a considerable shift in jurisprudence away from blind deference.
Auer was indeed retained, but it may be in name only. Justice Kagan, in fashioning the plurality Opinion of the Court, requires courts to apply various rules of construction prior to applying Auer deference. As Justice Gorsuch and Justice Kavanaugh opine in their opinions concurring in the judgement, they recognize that essentially Auer, while it technically survives, has been essentially neutered.
I would have been far happier if the court had openly struck down Auer. However, I am satisfied that today’s decision will begin pruning the administrative state back a bit.
And it is quite interesting to watch even as the Chief Justice waffles between the center and center right, Justice Kagan has been drifting ever so noticeably towards the center on administrative state issues. She certainly played a considerable role in gutting Auer and for that I thank her.