Court Must Stop Relying on Stare Decisis Crutch to Prop Up Problematic Precedent

Washington, D.C. — Today’s Supreme Court decision in Kisor v. Wilkie grants temporary victory to combat veteran James Kisor but nevertheless keeps Auer deference intact. Although the facts of the case involved a dispute over veterans’ benefits, the question before the Court was whether two related precedents, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., should be overturned.

While disappointing, the Court’s failure to overturn its practice of deferring to agencies’ interpretations of their own regulations is not shocking. If nothing else, the Court does not like to admit when it has made a mistake. More surprising is that the four-justice plurality simply ignored the two most fundamental constitutional objections to Auer deference, objections which NCLA brought to the Court’s attention—and which informed Justice Gorsuch’s dissent. 

NCLA filed an amicus curiae brief in the case in January explaining how requiring a judge to defer to an agency’s interpretation of a regulation blatantly violates the Constitution in two separate ways. First, deferring to a government agency’s interpretation of a regulation violates due process, because it denies one of the litigants before the court a fair hearing. Second, when a judge defers in such a manner, he or she fails to live up to the judge’s Article III duty to provide independent judgment and thus violates the judicial oath.

The problem below in this case was not that the court sided with the Veterans Administration; the problem is that the court—relying on Auer—deferred to the legal interpretation of a very powerful litigant before that court, known as the federal government. That reliance and that deference denied Mr. Kisor the constitutional due process guaranteed to him by the Fifth Amendment of the Bill of Rights. If the court on remand jumps through the new hoops the Supreme Court just created before once again deferring to the agency’s reasonable interpretation of the regulation under Auer/Kisor deference, that court will violate his due process rights all over. By failing to provide its independent judgment, the court will also violate its Article III duty and oath.

“NCLA is disappointed, but not shocked, that the Supreme Court failed to overturn Auer deference today. Stare decisis is no excuse for violating the due process rights of litigants. The Court must stop acting as though there is some binding legal obligation to adhere to this deeply flawed precedent. Where the Court is reconsidering the constitutionality of a doctrine it created, it cannot attribute much precedential weight to that case without making it impossibly difficult for the Court to correct its own past constitutional transgressions. We trust that when the Court eventually comes to grips with the constitutional defects in deference doctrines, it will strike down Auer and Seminole Rock for good.”
Mark Chenoweth, Executive Director & General Counsel, NCLA


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.