Washington, D.C. — The New Civil Liberties Alliance today filed an amicus curiae brief before the U.S. Supreme Court in the Kisor v. Wilkie case. Although the facts of the case involve a dispute over veterans’ benefits, the question before the Court is whether two of its precedents, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., should be overturned.

In these cases, the Supreme Court developed what has come to be known as the Auer deference doctrine, which holds that courts must defer to a federal agency’s reasonable interpretation of its own ambiguous regulations. NCLA is particularly disturbed by how the regime of Auer deference—like other agency-deference doctrines—requires federal judges to defer to another entity’s interpretation of the law.

NCLA’s brief explains that Auer deference blatantly violates the Constitution in two separate ways. First, Auer requires judges to abandon their duty of indepen­dent judgment, in violation of Article III and the judicial oath. Second, Auer violates the Due Process Clause by commanding judges to exhibit bias in favor of the legal positions of administrative agencies—even when those agencies are litigants before the court. And, of course, displaying bias in favor of the government also entails showing bias against whomever is litigating against the government agency, thereby depriving that litigant of due process.

“For more than two decades, Auer deference has deprived innumerable litigants of due process. A decision from the Court that fixes this problem prospectively will be welcome, but to truly make up for the wrong this doctrine has caused, the Court should fully acknowledge the constitutional defects inherent in Auer deference. The Court owes it to those negatively impacted by Auer to candidly concede that the Auer doctrine violated both the independence of the judiciary and the Fifth Amendment guarantee of due process.” Mark Chenoweth-NCLA Executive Director and General Counsel

Defenders of Auer will no doubt try to salvage the doctrine by invoking stare decisis—and act as though there is some binding legal obligation to adhere to this precedent, notwithstanding its gross unconstitutionality. But 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.

About 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 unbridled power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online: NCLAlegal.org

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