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An unusual coalition of business, labor and immigration rights groups wants to change the way federal regulators interpret their own rules — but that effort has sparked fears that consumer and worker protections could be gutted in the process.
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The fight is due to play out in a Supreme Court argument set for Wednesday. The case involves James Kisor, a Marine veteran who is demanding that the Department of Veterans Affairs provide him with retroactive disability payments for post-traumatic stress disorder he developed while serving in brutal battles in Vietnam.
The VA argues that, under its interpretation of its regulations, it should only be required to pay benefits going back to 2006 — not the 1980s, as Kisor has asked.
Thanks to a 1997 Supreme Court ruling, courts generally let agencies interpret the meaning of their own regulations, as long as the interpretation is reasonable. That principle is known as “Auer deference” after the case Auer v. Robbins.
But groups including the AFL-CIO, the Chamber of Commerce, and the National Right to Work Legal Defense Foundation have weighed in on the case, asking the nation’s top court to disavow Auer deference, which they say gives federal regulators way too much power to dictate how they enforce their own rules.
Those opposing Auer say it forces businesses, immigrants and workers to read though poorly organized and obscure government websites, court dockets, and elsewhere simply to understand what rules apply to them, with virtually no chance for court review.
The National Immigrant Justice Center notes that the federal government often invokes Auer deference in immigration disputes. In a brief, the group said it can make deportation proceedings unaccountable and byzantine.
And business and labor groups say it makes rules governing employment difficult or impossible to understand, and leaves them subject to the fickle whims of political appointees.
“Their position is a very consistent one, which is: The regulated community wants predictability,” said Paul Hughes, a partner at Mayer Brown who is arguing the case for Kisor.
The Trump administration, which is defending the Department of Veterans Affairs, does not want to overturn Auer. Instead, it wants the Supreme Court to narrow how broadly Auer and a related past ruling can be applied.
Some academics, court observers, and the Democratic Sen. Sheldon Whitehouse of Rhode Island, see a nefarious conservative legal strategy at play in the case.
According to them, the court’s decision to hear it was part of an orchestrated attack on the levers of government power that protect consumers and keep businesses from exploiting their workers.
“This case comes before the Court as part of a larger strategy to disable public interest regulation,” Whitehouse wrote in a brief with the court.
The senator, once Rhode Island’s attorney general, wrote that the case must be “seen in the larger context of the age-old contest between powerful influencers who seek to bend government to their will, and a general public that counts on government to protect it from the influencers.”
Conservative Justices Brett Kavanaugh, Neil Gorsuch and Clarence Thomas have been sharply critical of Auer.
Gillian Metzger, a professor at Columbia Law School, has written that the case is “troubling” because it could foretell how the court under Chief Justice John Roberts, with a fortified conservative majority, may wage a constitutional attack on the administrative state.
A particularly worrisome sign, according to Metzger, is that the case at hand doesn’t have the hallmarks of government overreach that Auer’s critics are most energized about.
“The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions,” Metzger wrote.
Critics also point to recent research that shows that, contrary to conservative attacks, government agencies generally do not use Auer to bolster their own power by issuing vague regulations.
And they say that, because much of the law that applies to regulation is interconnected, any broad ruling striking down Auer could have unintended consequences.
“Cooking up a new approach to precedent yields a toxic brew that can be harmful even to its creators,” wrote Adrian Vermeule, a professor at Harvard Law School.
A decision in the case is expected by late June.