Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own regulations. This development could give businesses—particularly those in highly regulated industries—more opportunities to challenge, limit, or at least better anticipate their regulatory burden.
This term in Kisor v. Wilkie, the US Supreme Court will consider whether to overturn Auer deference; the rule that courts must defer to an agency’s construction of its own regulation unless that interpretation “is plainly erroneous or inconsistent with the regulation.” This development fits with the broader trend that we identified last year—the Court’s growing skepticism about deferring to legal determinations made by administrative agencies. Last year, we explained the Court’s hostility to Auer deference’s controversial cousin, the Chevron doctrine, which requires courts to defer to an agency’s reasonable interpretation of a statute. Continue Reading