Washington, D.C. —The New Civil Liberties Alliance, a nonprofit civil-rights organization and public-interest law firm, filed an amicus brief supporting the appellant in the case of Goldwater Institute v. U.S. Department of Health and Human Services before the U.S. Court of Appeals for the Ninth Circuit. NCLA is particularly disturbed by the practice, which happened here, of extending judicial “Auer deference” to legal interpretations that federal agencies provide in affidavits to the court as one of the litigating parties. 

Deferring to the interpretations of executive branch agencies compromises judicial independence and forces judges to violate their judicial oath to provide their own judgment.  It also deprives litigants before the court of due process, because it is not possible for one party to have a fair trial if the court is deferring to the legal interpretations of the other party before the court.   

Last month, in Kisor v. Wilkie, the Supreme Court created a new “Step Zero” to Auer deference that requires courts first to use traditional tools of statutory construction and evaluate other factors to determine whether there is a need to resort to Auer deference. Under Kisor, there should be no need to defer to agencies’ legal interpretations in most cases going forward—very much including this one.

“Deference is a thin disguise for courts that abandon their duty of independent judgment and assign weight to a non-judicial entity’s interpretation of the law. Kisor did not resolve the grave constitutional concerns that this deference regime raises. The Ninth Circuit now has the chance to give due regard to these overlooked constitutional problems with Auer deference.”—Peggy Little, Senior Litigation 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.