'Fractured and Divided,' Justices' Agency-Power Ruling Sows Uncertainty
"A fractured and divided court produces fractured and divided decisions. The Kisor case proves it," one court observer says.
June 26, 2019 at 03:14 PM
4 minute read
In a February oral argument, Justice Neil Gorsuch called one of the Supreme Court's precedents “a dog's breakfast”—a rarely used colloquial way of saying that it was a complete mess.
On Wednesday, the court served up what may prove to be another canine meal in the form of Kisor v. Wilkie. The dissent-free decision seemed to have rescued the so-called “Auer doctrine” on deference to regulatory agencies, even though most of the nine justices criticized it and said the doctrine is just one more case away from being overruled.
“Auer deference retains an important role in construing agency regulations. Even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not,” Justice Elena Kagan wrote.
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