Kisor v. Wilkie: A Reprieve for Embattled Administrative State?

by Robert Glicksman | July 10, 2019

Originally published by The George Washington Law Review. Reprinted with permission.

Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1

In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality in Gundy v. United States2 concluded that a provision of the Sex Offender Registration and Notification Act (“SORNA”) authorizing the Attorney General to specify the applicability of the Act’s registration requirements and to prescribe rules for registration did not amount to an unconstitutional delegation of legislative power. Three other members of the Court (Justice Gorsuch, Chief Justice Roberts, and Justice Thomas), dissented, emphasizing the Court’s responsibility to determine “whether Congress has unconstitutionally divested itself of its legislative responsibilities.”3 Finding that it did in SORNA’s delegation to the Attorney General, the dissenters characterized the ...

The Witching Auer

by Daniel Farber | July 08, 2019
Originally published on Legal Planet. The Supreme Court’s recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has ...
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