2 Post-Kisor Rulings Show Auer Deference Isn’t Extinct

Law360 (November 7, 2019, 3:27 PM EST) -- Earlier this year the U.S. Supreme Court issued its opinion in Kisor v. Wilkie, upholding but dramatically narrowing Auer deference. The Auer doctrine instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is "plainly erroneous or inconsistent with the regulation."

While purporting to affirm Auer deference, the Kisor majority held that a court should only defer to an agency’s interpretation if there is a genuine ambiguity, the regulatory guidance comes from the appropriate source, and the rationale for the regulation is not litigation-driven. The Kisor court also instructed that interpretive issues that fall into...

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