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Who should decide the disputed meaning of laws and regulations in American democracy: legislatures, courts, or executive branch agencies? Chevron deference is a long-standing Supreme Court standard that federal agencies with expertise in a specific area must be given deference if federal law is unclear. Auer deference adds that federal agencies should have that power when they interpret their own regulations. These doctrines have been questioned in recent years as violations of the separation of powers. Kisor provides guidance on who defines the meaning of regulations and the balance of power between federal agencies and courts.
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519 U.S. 42 (1997).
325 U.S. 40 (1945).
See, for example, Peter J. Wallison, Judicial Fortitude: The Last Chance to Rein in the Administrative State (New York: Encounter Books, 2018).
Amy Howe, “Justices to Tackle Important Agency-Deference Question: In Plain English,” SCOTUSblog, 28 January 2019.
410 U.S. 113 (1973).
National Register of Historic Places, 84 Federal Register 6996 (proposed March 1, 2019).
Definition summarized in Syncor International Corp. v. Shalala, 127 F.3d 90 (D.C. Circuit 1997).
Robert A. Anthony, “Interpretive Rules, Policy Statements, Guidances, Manuals and the Like—Should Federal Agencies Use Them to Bind the Public?” 41(6) Duke Law Journal 1311–1384 (1992).
468 U.S. 837 (1984).
323 U.S. 134 (1944).
Perez v. Mortgage Bankers Association, 575 U.S. ____ (2015).
Kisor decision, page 26.
Kisor Gorsuch concurrence, page 33.
Ibid., pages 2, 3.
Kisor Roberts concurrence, page 2; Kavanaugh concurrence, page 2.
Ronald Levin, “ Auer Deference—Supreme Court Chooses Evolution, Not Revolution,” SCOTUSblog, 27 June 2019.
- Kisor v. Wilkie on Deference to Federal Agencies
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