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Encouraging Reasoned Decision Making: Kisor v. Wilkie and the Future of Auer Deference

Feb 16, 2021

Chelsea Mitchell

Volume 47 (2020) - Issue 2

In 2019, the Supreme Court decided Kisor v. Wilkie, a case that asked the Court to revisit Auer deference, the doctrine which instructs courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Auer deference, along with other judicial deference doctrines, has received vehement criticism from legal scholars and political scientists. Among these criticisms is the assertion that Auer deference allows too much opportunity for judges’ own views of “reasonableness” to infiltrate their legal analysis, increasing the likelihood that judicial deference to agency interpretations will be significantly
influenced by ideology. The majority decision in Kisor purported to articulate clearer standards for the application of Auer deference and require judges to more clearly articulate their analysis in cases where Auer deference may be appropriate.

This Note considers whether the Kisor framework could mitigate the impact of judicial ideology on deference decisions. It focuses in particular on the use of Auer deference in cases involving the Endangered Species Act, a statute which has been highly polarizing along party lines. The Note examines several cases, decided before and after Kisor, in which federal courts were asked to rule on the meaning of Endangered Species Act regulations. This analysis suggests that while Kisor is unlikely to completely remove the influence of judicial ideology on deference decisions, its requirement that judges “show their work” has the
potential to significantly reduce the role that judicial ideology plays in determining what constitutes a “reasonable” interpretation of an ambiguous regulation. While it is too soon to definitively evaluate Kisor’s impact on deference decisions, this Note suggests that the Kisor framework encourages a more principled and ideologically neutral approach to difficult agency deference decisions.