Administrative Procedure -- active

Kisor v. Wilkie   (U.S. Supreme Court)

Scope of judicial deference to agency regulations

The NAM filed an amicus brief in support of certiorari to the U.S. Supreme Court in a case involving judicial deference to administrative agencies’ interpretations of their own regulations. The case arose from a veteran’s lawsuit against the Veterans’ Administration over his post-service benefits. The sole legal question before the Supreme Court is whether the landmark case of Auer v. Robbins (S. Ct. 1997) should be overturned. Auer held that reviewing courts should give "extreme deference" to administrative agencies' interpretations of their own regulations. This so-called “Auer deference” allows agencies to promulgate vague regulations and then enjoy broad judicial deference to their own interpretation of their regulation. This case has important implications for manufacturers because a favorable ruling by the Supreme Court would discourage agencies from promulgating vague regulations and would give more certainty to manufacturers that their own reasonable interpretations of regulations will be upheld in response to a government enforcement proceeding or other regulatory action. The NAM's amicus brief in support of certiorari explained how extreme judicial deference to agencies harms manufacturers. On December 10, 2018, the Court granted certiorari to hear the case, thereby providing an opportunity for the NAM to file an upcoming brief on the merits to eliminate this problematic legal doctrine.

Related Documents:
NAM brief  (August 1, 2018)


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