Originally published in Forbes on June 30, 2019

Chief Justice John Roberts lent the crucial fifth vote to uphold so-called Auer deference (solely on stare decisis grounds) in last week’s Kisor v. Wilkie case at the U.S. Supreme Court. In so doing, he wrote that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Roberts is dead wrong, and it is important to understand why.

In fact, a wide gulf separates the 4-justice plurality position espoused by Justice Elena Kagan (for JJ. Ginsburg, Breyer and Sotomayor) and what amounts to another 4-justice plurality position espoused by Justice Neil Gorsuch (for JJ. Thomas, Alito and Kavanaugh). How wide? About the width of the Constitution.

Auer deference stands for the idea that judges must defer to federal agencies when interpreting those agencies’ regulations, if there is any ambiguity in them.

Justice Kagan gave short shrift to Mr. Kisor’s constitutional arguments against Auer deference, noting that Kisor’s own brief tackled them last (and “fleetingly”). She devoted less than one page of her 29-page opinion to dispensing with the separation-of-powers concerns he raised by asserting that “[p]roperly understood and applied” “courts retain a firm grip on the interpretive function” under Auer.

Yet Kagan studiously ignored the two biggest constitutional objections to Auer deference. As Columbia Law School Professor Philip Hamburger has argued (in both his scholarship and an amicus curiae brief in Kisor), Auerdeference first violates due process because it denies one of the litigants before the court a fair hearing. Second, whenever a judge defers to an agency’s interpretation, he or she fails to live up to that judge’s Article III duty to provide independent judgment.

These twin constitutional critiques permeate Justice Gorsuch’s 4-justice concurrence in judgment. For instance, he noted, “[w]hen we defer to an agency interpretation that differs from what we believe to be the best interpretation of the law, we compromise our judicial independence and deny the people who come before us the impartial judgment that the Constitution guarantees them.”

These very critiques also happen to undercut some of Kagan’s key arguments in defense of Auer. Kagan rejected the claim that Auer deference contradicts § 706 of the Administrative Procedure Act. That statute instructs reviewing courts they must “determine the meaning or applicability of the terms of an agency action.” Kagan argued that “courts do not violate Section 706 by applying Auer. To the contrary,” she said, “they fulfill their duty to ‘determine the meaning’ of a rule precisely by deferring to the agency’s reasonable reading.”

One might suppose judges do not “determine the meaning” when they are actively deferring. But Kagan countered that § 706 does not specify a standard of review, so a review limited to examining reasonableness is just as defensible as more robust review. Though hers may not be the most straightforward way to read the APA’s command that judges need to determine the meaning of regulations, it is at least plausible on the surface. Until, that is, the constitutional critique comes into play.

Judges take an oath to provide their own independent judgment. The Constitution takes pains (i.e., life tenure, salary protection) to keep judicial independence from being compromised. So, an Article III judge does not fulfill his or her constitutional obligation to provide independent judgment if he or she decides cases by deferring to an executive branch official’s interpretation of the law.

The due process critique refutes another aspect of Kagan’s opinion. “The deference doctrine we describe is potent in its place but cabined in its scope,” she said. Is it really cabined though? As Justice Gorsuch pointed out, “the doctrine matters only when a court would conclude that the agency’s interpretation is not the best or fairest reading of the regulation.” Then, under Auer, a court must go along with the agency’s interpretation anyway.

Chief Justice Roberts downplayed the significance of this insight by saying, “[T]he cases in which Auer deference is warranted largely overlap” those where “it would be unreasonable for a court not to be persuaded by an agency’s interpretation of its own regulation.”

“Largely.” Therein lies the rub. Sometimes, Roberts acknowledged, it would not be unreasonable for a court not to be persuaded by an agency’s legal interpretation. In those cases where Auer deference nonetheless obliges government victory, deference utterly denies due process. That is, when a judge pre-commits to favoring the legal view of one of the two litigants before the court—promising to enforce its legal interpretation even if the court thinks the other litigant has the better reading of the law—the judge exhibits bias. And such outright bias blatantly violates the due process requirement to accord a fair hearing to both litigants before a neutral arbiter.

Justice Gorsuch properly took issue with the notion that most cases come out the same regardless of the level of deference. “[M]eans not just ends matter,” he wrote. So the fact that the outcomes produced by two different deference regimes usually coincide offers small comfort. It is precisely when Justice Kagan’s “cabined” version of Auer deference yields a different outcome from Gorsuch’s far less deferential approach that the constitutional rights of a litigant get trampled.

When civil liberties (and not just government benefits, as in Kisor) are at stake, it is even more imperative that the party with the stronger legal argument prevail. If any litigant loses solely because of Auer deference, that is intolerable from a constitutional perspective, no matter how many cases otherwise come out identically—and no matter what stare decisis ordinarily dictates.

Chief Justice Roberts’s concurrence conceded that “there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation under certain conditions.” But he did not seem to recognize there is a constitutional difference in kind between being persuaded and having to defer.

Perhaps if Roberts confronts Prof. Hamburger’s twin constitutional critiques of Auer deference in a future case (possibly outside the benefits context, where the government’s latitude is greater), he will reconsider the strength of these constitutional objections and no longer be willing to sacrifice due process rights on the altar of stare decisis. To use his vaunted judges-as-umpires metaphor, perhaps he will come to understand that deference doctrines like Auer unfairly expand the strike zone—and only when the government is pitching! He could then provide a fifth vote to the Gorsuch plurality and strike down Auer deference for good.

Meanwhile, a yawning constitutional chasm still separates Justice Kagan’s and Justice Gorsuch’s competing approaches to deference, however much the Chief Justice might wish to bridge the gulf.

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