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The Supreme Court decided the much-anticipated Kisor v. Wilkie case on July 3. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.
Karen Harned and Stephen Vaden discuss the highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
Karen Harned, Executive Director, NFIB Small Business Legal Center
Stephen Vaden, General Counsel, United States Department of Agriculture
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