SCOTUS Upholds Administrative Law Doctrine 'Auer' 9-0; Some Justices Eye 'Chevron'

Department of Veteran’s Affairs on the administration of his disability benefits. FCC General Counsel Tom Johnson didn’t comment on the decision Wednesday. He said in May (see 1905150060) the FCC was following the case, but the agency didn’t often rely on the sort of informal guidance generally covered by Auer. “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean,” said Justice Elena Kagan in the majority opinion. “But that phrase ‘when it applies’ is important -- because it often doesn’t.” Kagan’s opinion lists a variety of situations where Auer shouldn’t be used. In a separate opinion joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh, Justice Neil Gorsuch agreed with the majority's judgment but said the court should have done away with the doctrine entirely, and that it eventually will. Calling the ruling “a stay of execution” rather than a pardon, Gorsuch said the court will have to rule on Auer again. In their separate opinions, Kavanaugh and Roberts both noted the court’s ruling on Auer doesn’t touch the issue of whether courts should defer to agency interpretations of congressional statutes, a matter which is close to the doctrine of Chevron deference. The opinions are another sign the court could look at Chevron deference, which if overturned could mean the FCC is “out of business,” one broadcast attorney told us.