July 16, 2019
By Jon Riches

In deciding Kisor v. Wilkie, the U.S. Supreme Court missed a major opportunity to restore separation of powers and ensure that government agencies do not get an unfair advantage in legal cases in which they are parties.

America’s legal system grants administrative agencies extraordinary power. Under existing law, administrative agencies make rules that have the force of law, investigate alleged violations of those rules, and adjudicate those alleged violations with administrative law judges the agency itself hires.

Adding to this concentration of power in the executive branch, under a doctrine called Auer deference, if cases are brought before supposedly impartial federal courts, courts are obligated to defer to the agency’s interpretation of its own regulations.         

In the Kisor case, the Court had an opportunity to dispatch with this doctrine, and for the first time in decades, provide for fair judicial review in cases involving the interpretation of agency regulations. But in a decision in with Chief Justice Roberts joined with the four liberal justices, the Court declined to do so.          

Because the Supreme Court has failed to fix a problem of its own making, it is high time lawmakers stepped in — at both the state and federal level.          

Although deference to administrative agencies is a major problem at the federal level, it also exists in states throughout the country. Dozens of states have adopted some form of deference doctrines when interpreting legal questions out of state administrative agencies. Because many of these states model their administrative procedures act on the federal APA, a simple amendment to those laws can address this problem at the state level.            

Last year, Arizona was the first state in the country to make this change statutorily. Arizona’s law amended the state APA to eliminate both Auer deference and Chevron deference — Auer’s equally pernicious cousin, requiring courts to defer to administrative agency’s interpretation of statutes. In other words, in Arizona, the government no longer gets a thumb on the scale in cases involving disputed questions of law in administrative actions. 

Many with legal training will recognize the Latin phase, nemo judex in causa sua, meaning “no one should be a judge in his own case.” For too long, Auer deference has allowed unelected bureaucrats at administrative agencies to have an enormous advantage in cases involving rules the agencies make.       

The Supreme Court missed an opportunity to restore due process to an area of the law badly in need of it.  States should now follow Arizona’s examples and take this matter into their own hands by statutorily eliminating deference doctrines. And Congress would be wise to follow suit.

First appeared at RealClearPolicy.

Jon Riches is the Director of National Litigation at the Goldwater Institute.

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