Kisor v. Wilkie , 204 L. Ed. 2d 841 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KISOR v. WILKIE, SECRETARY OF VETERANS
AFFAIRS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 18–15. Argued March 27, 2019—Decided June 26, 2019
Petitioner James Kisor, a Vietnam War veteran, first sought disability
benefits from the Department of Veterans Affairs (VA) in 1982, alleg-
ing that he had developed post-traumatic stress disorder from his
military service. The agency denied his initial request, but in 2006,
Kisor moved to reopen his claim. The VA this time agreed he was el-
igible for benefits, but it granted those benefits only from the date of
his motion to reopen, not (as Kisor had requested) from the date of
his first application. The Board of Veterans’ Appeals—a part of the
VA—affirmed that retroactivity decision, based on its interpretation
of an agency rule governing such claims. The Court of Appeals for
Veterans Claims affirmed.
The Federal Circuit also affirmed, but it did so by applying a doc-
trine called Auer (or sometimes, Seminole Rock) deference. See Auer
v. Robbins, 519 U.S. 452; Bowles v. Seminole Rock & Sand Co., 325
U.S. 410. Under that doctrine, this Court has long deferred to an
agency’s reasonable reading of its own genuinely ambiguous regula-
tions. The Court of Appeals concluded that the VA regulation at is-
sue was ambiguous, and it therefore deferred to the Board’s interpre-
tation of the rule. Kisor now asks the Court to overrule Auer, as well
as its predecessor Seminole Rock, discarding the deference those de-
cisions give to agencies.
Held: The judgment is vacated and remanded.
869 F.3d 1360, vacated and remanded.
JUSTICE KAGAN delivered the opinion of the Court with respect to
Parts I, II–B, III–B, and IV, holding that Auer and Seminole Rock are
not overruled. Pp. 11–19, 25–29.
2 KISOR v. WILKIE
Syllabus
(a) This Court’s deference doctrine is rooted in a presumption that
Congress intended for courts to defer to agencies when they interpret
their own ambiguous rules. The Court adopts that presumption for a
set of reasons related to the comparative attributes of courts and
agencies in answering interpretive questions. But when the reasons
for the presumption do not hold up, or when countervailing reasons
outweigh them, courts should not give deference to an agency’s read-
ing. The Court has thus cabined Auer’s scope in varied and critical
ways.
First and foremost, a court should not afford Auer deference unless,
after exhausting all the “traditional tools” of construction, Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843, n. 9, the regulation is genuinely ambiguous. A court must
carefully consider the text, structure, history, and purpose of a regu-
lation before resorting to deference. If genuine ambiguity remains,
the agency’s reading must still fall “within the bounds of reasonable
interpretation.” Arlington v. FCC, 569 U.S. 290, 296.
And even then, not every reasonable agency reading of a genuinely
ambiguous rule should receive Auer deference. Rather, a court must
also make an independent inquiry into whether the character and
context of the agency interpretation entitles it to controlling weight.
See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142,
155. The inquiry along this dimension does not reduce to an exhaus-
tive test, but the Court has laid out some especially important mark-
ers for identifying when Auer deference is and is not appropriate. To
begin with, the regulatory interpretation must be the agency’s au-
thoritative or official position, rather than any more ad hoc state-
ment not reflecting the agency’s views. Next, the agency’s interpreta-
tion must in some way implicate its substantive expertise, as the
basis for deference ebbs when the subject matter of a dispute is dis-
tant from the agency’s ordinary duties. Finally, an agency’s reading
of a rule must reflect its “ fair and considered judgment.” Auer, 519
U. S., at 462. A court should decline to defer, for example, to a merely
“ ‘convenient litigating position,’ ” Christopher, 567 U. S., at 155., or to
a new interpretation that creates “unfair surprise” to regulated par-
ties, Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170.
Pp. 11–19.
(b) Stare decisis cuts strongly against overruling Auer. Adherence
to precedent is “a foundation stone of the rule of law,” Michigan v.
Bay Mills Indian Community, 572 U.S. 782, 798, and any departure
from the doctrine demands “special justification,” Halliburton Co. v.
Erica P. John Fund, Inc., 573 U.S. 258, 266. That is even more than
usually so in the circumstances here. First, Kisor asks the Court to
overrule a “long line of precedents”—each one reaffirming the rest
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and going back 75 years or more. Bay Mills, 572 U. S., at 798. Sec-
ond, because Auer deference pervades the whole corpus of adminis-
trative law, abandoning it would cast doubt on many settled con-
structions of rules. And third, even if the Court is wrong about Auer,
“Congress remains free to alter what [the Court has] done.” Patter-
son v. McLean Credit Union, 491 U.S. 164, 172–173. For approach-
ing a century, Congress has let this deference regime work side-by-
side with both the Administrative Procedure Act (APA) and the many
statutes delegating rulemaking power to agencies. This Court would
thus need a particularly “special justification” to now reverse Auer.
Kisor offers nothing of that ilk. Nearly all of his arguments relate
to whether the doctrine is wrong or poorly reasoned. He does not
claim that Auer deference is “unworkable,” a traditional basis for
overruling a case, Patterson, 491 U. S., at 173, or point to changes in
legal rules that make Auer a “doctrinal dinosaur,” Kimble v. Marvel
Entertainment, LLC, 576 U.S. ___, ___. Instead, his lone special jus-
tification is that the administrative state has evolved substantially
since this Court decided Seminole Rock in 1945. It is true that agen-
cies have far-reaching influence today; that is one reason the Court
has taken care to reinforce the limits of Auer deference. But it is no
answer to the growth of agencies for courts to take over their exper-
tise-based, policymaking functions. Pp. 25–28.
(c) Turning to Kisor’s own case, a remand is necessary for two rea-
sons. First, the Federal Circuit jumped the gun in declaring the VA’s
regulation ambiguous before bringing all its interpretive tools to bear
on the question. Second, the Federal Circuit assumed too fast that
Auer deference should apply in the event of genuine ambiguity, ra-
ther than assessing whether the interpretation is of the sort that
Congress would want to receive deference. On remand, the Court of
Appeals must reconsider whether Auer deference is warranted, bear-
ing in mind the principles outlined in this opinion. Pp. 28–29.
JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and
JUSTICE SOTOMAYOR, concluded in Parts II–A and III–A:
(a) Auer deference is rooted in a presumption that Congress would
generally want the agency to play the primary role in resolving regu-
latory ambiguities. See Martin v. Occupational Safety and Health
Review Comm’n, 499 U.S. 144, 151–153. In part, the presumption
arises because the agency that promulgated a rule is in the “better
position [to] reconstruct” its original meaning. Id., at 152. In still
greater measure, the presumption stems from an awareness that re-
solving genuine regulatory ambiguities often “ ‘entail[s] the exercise
of judgment grounded in policy concerns,’ ” an area where agencies
have a comparative advantage over courts. Thomas Jefferson Univ.
v. Shalala, 512 U.S. 504, 512. Finally, the presumption reflects the
4 KISOR v. WILKIE
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well-known benefits of uniformity in interpreting ambiguous rules.
Auer deference promotes “resolving interpretive issues by uniform
administrative decision, rather than piecemeal by litigation,” Ford
Motor Credit Co. v. Milhollin, 444 U.S. 555, 568. Pp. 4–11.
(b) None of Kisor’s arguments provide good reason to reconsider
Auer deference. First, he claims that Auer is inconsistent with the
APA’s judicial review provision, which instructs reviewing courts to
“determine the meaning” of an agency action. 5 U.S. C. §706. Even
when a court defers to a regulatory reading, however, it acts consist-
ently with Section 706. That provision does not specify the standard
of review a court should use in “determin[ing] the meaning” of an
ambiguous rule. This Court thus presumes that Congress would
want courts to do so by reviewing agency interpretations for reasona-
bleness. That is especially so because Section 706, when enacted,
was understood to restate the present law of judicial review—which
would have included deference under Seminole Rock. Nor does Auer
circumvent the APA’s rulemaking requirements, which require regu-
lations to go through notice and comment before they can bind third
parties. Even though a court might defer to an agency’s interpreta-
tion of a regulation, the agency’s interpretation itself never forms the
basis for an enforcement action. Rather, an agency bringing an en-
forcement action must always rely on a rule that went through notice
and comment. And courts, in turn, always retain the final authority
to approve—or not—an agency’s reading of that notice-and-comment
rule. See Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___.
Kisor’s policy and constitutional arguments fail just as roundly. As
a policy matter, he contends that Auer encourages agencies to issue
vague and open-ended regulations, confident that they can later im-
pose whatever interpretation of those rules they prefer. But no real
evidence backs up that assertion and strong incentives cut in the op-
posite direction. Finally, Kisor asserts that Auer deference violates
“separation-of-powers principles” by vesting both legislative and judi-
cial functions in one branch. If that objection is to agencies’ usurping
the interpretive role of courts, Auer—when properly understood and
applied—does no such thing. And if the objection is instead to the
supposed commingling of functions within an agency, this Court has
explained that even when agency “activities take ‘legislative’ and ‘ju-
dicial’ forms,” they continue to be “exercises of the ‘executive Power,’”
and thus raise no constitutional concerns. Arlington, 569 U. S., at
304–305, n. 4. Pp. 19–25.
KAGAN, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II–B, III–B, and IV, in
which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ.,
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joined, and an opinion with respect to Parts II–A and III–A, in which
GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an
opinion concurring in part. GORSUCH, J., filed an opinion concurring in
the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J.,
joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as
to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the
judgment, in which ALITO, J., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–15
_________________
JAMES L. KISOR, PETITIONER v. ROBERT WILKIE,
SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 26, 2019]
JUSTICE KAGAN announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II–B, III–B, and IV, and an opinion with respect to
Parts II–A and III–A, in which JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join.
This Court has often deferred to agencies’ reasonable
readings of genuinely ambiguous regulations. We call that
practice Auer deference, or sometimes Seminole Rock
deference, after two cases in which we employed it. See
Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410 (1945). The only question
presented here is whether we should overrule those deci-
sions, discarding the deference they give to agencies. We
answer that question no. Auer deference retains an im-
portant role in construing agency regulations. But even as
we uphold it, we reinforce its limits. Auer deference is
sometimes appropriate and sometimes not. Whether to
apply it depends on a range of considerations that we have
noted now and again, but compile and further develop
today. The deference doctrine we describe is potent in its
place, but cabined in its scope. On remand, the Court of
Appeals should decide whether it applies to the agency
interpretation at issue.
2 KISOR v. WILKIE
Opinion of the Court
I
We begin by summarizing how petitioner James Kisor’s
case made its way to this Court. Truth be told, nothing
recounted in this Part has much bearing on the rest of our
decision. The question whether to overrule Auer does not
turn on any single application, whether right or wrong, of
that decision’s deference doctrine. But a recitation of the
facts and proceedings below at least shows how the ques-
tion presented arose.
Kisor is a Vietnam War veteran seeking disability bene-
fits from the Department of Veterans Affairs (VA). He
first applied in 1982, alleging that he had developed post-
traumatic stress disorder (PTSD) as a result of his partici-
pation in a military action called Operation Harvest Moon.
The report of the agency’s evaluating psychiatrist noted
Kisor’s involvement in that battle, but found that he “d[id]
not suffer from PTSD.” App. 12, 14. The VA thus denied
Kisor benefits. There matters stood until 2006, when
Kisor moved to reopen his claim. Based on a new psychi-
atric report, the VA this time agreed that Kisor suffered
from PTSD. But it granted him benefits only from the
date of his motion to reopen, rather than (as he requested)
from the date of his first application.
The Board of Veterans’ Appeals—a part of the VA,
represented in Kisor’s case by a single administrative
judge—affirmed that timing decision, based on its inter-
pretation of an agency rule. Under the VA’s regulation,
the agency could grant Kisor retroactive benefits if it
found there were “relevant official service department
records” that it had not considered in its initial denial.
See 38 CFR §3.156(c)(1) (2013). The Board acknowledged
that Kisor had come up with two new service records, both
confirming his participation in Operation Harvest Moon.
But according to the Board, those records were not “rele-
vant” because they did not go to the reason for the de-
nial—that Kisor did not have PTSD. See App. to Pet. for
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Cert. 43a (“[The] documents were not relevant to the
decision in May 1983 because the basis of the denial was
that a diagnosis of PTSD was not warranted, not a dispute
as to whether or not the Veteran engaged in combat”).
The Court of Appeals for Veterans Claims, an independent
Article I court that initially reviews the Board’s decisions,
affirmed for the same reason.
The Court of Appeals for the Federal Circuit also af-
firmed, but it did so based on deference to the Board’s
interpretation of the VA rule. See Kisor v. Shulkin, 869
F.3d 1360, 1368 (2017). Kisor had argued to the Federal
Circuit that to count as “relevant,” a service record need
not (as the Board thought) “counter[] the basis of the prior
denial”; instead, it could relate to some other criterion for
obtaining disability benefits. Id., at 1366 (internal quota-
tion marks omitted). The Federal Circuit found the regu-
lation “ambiguous” as between the two readings. Id., at
1367. The rule, said the court, does not specifically ad-
dress “whether ‘relevant’ records are those casting doubt
on the agency’s prior [rationale or] those relating to the
veteran’s claim more broadly.” Ibid. So how to choose
between the two views? The court continued: “Both par-
ties insist that the plain regulatory language supports
their case, and neither party’s position strikes us as un-
reasonable.” Id., at 1368. Because that was so, the court
believed Auer deference appropriate: The agency’s con-
struction of its own regulation would govern unless “plainly
erroneous or inconsistent with the VA’s regulatory
framework.” Ibid. (internal quotation marks omitted).
Applying that standard, the court upheld the Board’s
reading—and so approved the denial of retroactive
benefits.
We then granted certiorari to decide whether to overrule
Auer and (its predecessor) Seminole Rock. 586 U. S. ___
(2018).
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II
Before addressing that question directly, we spend some
time describing what Auer deference is, and is not, for.
You might view this Part as “just background” because we
have made many of its points in prior decisions. But even
if so, it is background that matters. For our account of
why the doctrine emerged—and also how we have limited
it—goes a long way toward explaining our view that it is
worth preserving.
A
Begin with a familiar problem in administrative law:
For various reasons, regulations may be genuinely ambig-
uous. They may not directly or clearly address every
issue; when applied to some fact patterns, they may prove
susceptible to more than one reasonable reading. Some-
times, this sort of ambiguity arises from careless draft-
ing—the use of a dangling modifier, an awkward word, an
opaque construction. But often, ambiguity reflects the
well-known limits of expression or knowledge. The subject
matter of a rule “may be so specialized and varying in
nature as to be impossible”—or at any rate, impractica-
ble—to capture in its every detail. SEC v. Chenery Corp.,
332 U.S. 194, 203 (1947). Or a “problem[ ] may arise” that
the agency, when drafting the rule, “could not [have]
reasonably foresee[n].” Id., at 202. Whichever the case,
the result is to create real uncertainties about a regula-
tion’s meaning.
Consider these examples:
 In a rule issued to implement the Americans with
Disabilities Act (ADA), the Department of Justice
requires theaters and stadiums to provide people
with disabilities “lines of sight comparable to those
for members of the general public.” 28 CFR pt. 36,
App. A, p. 563 (1996). Must the Washington Wiz-
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ards construct wheelchair seating to offer lines of
sight over spectators when they rise to their feet?
Or is it enough that the facility offers comparable
views so long as everyone remains seated? See
Paralyzed Veterans of Am. v. D. C. Arena L. P., 117
F.3d 579, 581–582 (CADC 1997).
 The Transportation Security Administration (TSA)
requires that liquids, gels, and aerosols in carry-on
baggage be packed in containers smaller than 3.4
ounces and carried in a clear plastic bag. Does a
traveler have to pack his jar of truffle pâté in that
way? See Laba v. Copeland, 2016 WL 5958241, *1
(WDNC, Oct. 13, 2016).
 The Mine Safety and Health Administration issues
a rule requiring employers to report occupational
diseases within two weeks after they are “diag-
nosed.” 30 CFR §50.20(a) (1993). Do chest X-ray
results that “scor[e]” above some level of opacity
count as a “diagnosis”? What level, exactly? See
American Min. Congress v. Mine Safety and Health
Admin., 995 F.2d 1106, 1107–1108 (CADC 1993).
 An FDA regulation gives pharmaceutical companies
exclusive rights to drug products if they contain “no
active moiety that has been approved by FDA in
any other” new drug application. 21 CFR
§314.108(a) (2010). Has a company created a new
“active moiety” by joining a previously approved
moiety to lysine through a non-ester covalent bond?
See Actavis Elizabeth LLC v. FDA, 625 F.3d 760,
762–763 (CADC 2010); Tr. of Oral Arg. 12, 35.1
——————
1 In case you’re wondering, the regulatory definition of active moiety is
“[t]he molecule or ion, excluding those appended portions of the molecule
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 Or take the facts of Auer itself. An agency must de-
cide whether police captains are eligible for over-
time under the Fair Labor Standards Act. Accord-
ing to the agency’s regulations, employees cannot
receive overtime if they are paid on a “salary ba-
sis.” 29 CFR §541.118(a) (1996). And in deciding
whether an employee is salaried, one question is
whether his pay is “subject to reduction” based on
performance. Ibid. A police department’s manual
informs its officers that their pay might be docked
if they commit a disciplinary infraction. Does that
fact alone make them “subject to” pay deductions?
Or must the department have a practice of docking
officer pay, so that the possibility of that happening
is more than theoretical? 519 U. S., at 459–462.
In each case, interpreting the regulation involves a choice
between (or among) more than one reasonable reading. To
apply the rule to some unanticipated or unresolved situa-
tion, the court must make a judgment call. How should it
do so?
In answering that question, we have often thought that
a court should defer to the agency’s construction of its own
regulation. For the last 20 or so years, we have referred to
that doctrine as Auer deference, and applied it often.2 But
——————
that cause the drug to be an ester, salt (including a salt with hydrogen or
coordination bonds), or the noncovalent derivative (such as a complex,
chelate, or clathrate) of the molecule, responsible for the physiological or
pharmacological action of the drug substance.” 21 CFR §314.3(b) (2018).
2 See, e.g., PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011); Chase Bank
USA, N. A. v. McCoy, 562 U.S. 195, 208–210 (2011); Coeur Alaska, Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261, 274–275 (2009);
Riegel v. Medtronic, Inc., 552 U.S. 312, 328 (2008); Long Island Care at
Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007); Washington State Dept. of
Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371,
387–388 (2003).
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the name is something of a misnomer. Before the doctrine
was called Auer deference, it was called Seminole Rock
deference—for the 1945 decision in which we declared that
when “the meaning of [a regulation] is in doubt,” the
agency’s interpretation “becomes of controlling weight
unless it is plainly erroneous or inconsistent with the
regulation.” 325 U. S., at 414.3 And Seminole Rock itself
was not built on sand. Deference to administrative agen-
cies traces back to the late nineteenth century, and per-
haps beyond. See United States v. Eaton, 169 U.S. 331,
343 (1898) (“The interpretation given to the regulations by
the department charged with their execution . . . is en-
titled to the greatest weight”); see Brief for Administrative
Law Scholars as Amici Curiae 5, n. 3 (collecting early
cases); Brief for AFL–CIO as Amicus Curiae 8 (same).
We have explained Auer deference (as we now call it) as
rooted in a presumption about congressional intent—a
presumption that Congress would generally want the
agency to play the primary role in resolving regulatory
ambiguities. See Martin v. Occupational Safety and
Health Review Comm’n, 499 U.S. 144, 151–153 (1991).
——————
3 Our (pre-Auer) decisions applying Seminole Rock deference are le-
gion. See, e.g., Shalala v. Guernsey Memorial Hospital, 514 U.S. 87,
94–95 (1995); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994); Stinson v. United States, 508 U.S. 36, 44–45 (1993); INS v.
National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189–190
(1991); Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
358–359 (1989); Mullins Coal Co. of Va. v. Director, Office of Workers’
Compensation Programs, 484 U.S. 135, 159 (1987); Lyng v. Payne, 476
U.S. 926, 939 (1986); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta,
458 U.S. 141, 158, n. 13 (1982); Blanding v. DuBose, 454 U.S. 393, 401
(1982) (per curiam); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,
566 (1980); United States v. Larionoff, 431 U.S. 864, 872 (1977);
Northern Indiana Public Service Co. v. Porter County Chapter of Izaak
Walton League of America, Inc., 423 U.S. 12, 15 (1975) (per curiam);
Ehlert v. United States, 402 U.S. 99, 105 (1971); INS v. Stanisic, 395
U.S. 62, 72 (1969); Thorpe v. Housing Authority of Durham, 393 U.S.
268, 276 (1969); Udall v. Tallman, 380 U.S. 1, 16–17 (1965).
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Congress, we have pointed out, routinely delegates to
agencies the power to implement statutes by issuing rules.
See id., at 151. In doing so, Congress knows (how could it
not?) that regulations will sometimes contain ambiguities.
See supra, at 4. But Congress almost never explicitly
assigns responsibility to deal with that problem, either to
agencies or to courts. Hence the need to presume, one way
or the other, what Congress would want. And as between
those two choices, agencies have gotten the nod. We have
adopted the presumption—though it is always rebut-
table—that “the power authoritatively to interpret its own
regulations is a component of the agency’s delegated law-
making powers.” Martin, 499 U. S., at 151. Or otherwise
said, we have thought that when granting rulemaking
power to agencies, Congress usually intends to give them,
too, considerable latitude to interpret the ambiguous rules
they issue.
In part, that is because the agency that promulgated a
rule is in the “better position [to] reconstruct” its original
meaning. Id., at 152. Consider that if you don’t know
what some text (say, a memo or an e-mail) means, you
would probably want to ask the person who wrote it. And
for the same reasons, we have thought, Congress would
too (though the person is here a collective actor). The
agency that “wrote the regulation” will often have direct
insight into what that rule was intended to mean. Mullins
Coal Co. of Va. v. Director, Office of Workers’ Compensa-
tion Programs, 484 U.S. 135, 159 (1987). The drafters
will know what it was supposed to include or exclude or
how it was supposed to apply to some problem. To be
sure, this justification has its limits. It does not work so
well, for example, when the agency failed to anticipate an
issue in crafting a rule (e.g., if the agency never thought
about whether and when chest X-rays would count as a
“diagnosis”). See supra, at 5. Then, the agency will not be
uncovering a specific intention; at most (though this is not
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nothing), it will be offering insight into the analogous
issues the drafters considered and the purposes they
designed the regulation to serve. And the defense works
yet less well when lots of time has passed between the
rule’s issuance and its interpretation—especially if the
interpretation differs from one that has come before. All
that said, the point holds good for a significant category of
“contemporaneous” readings. Lyng v. Payne, 476 U.S.
926, 939 (1986). Want to know what a rule means? Ask
its author.
In still greater measure, the presumption that Congress
intended Auer deference stems from the awareness that
resolving genuine regulatory ambiguities often “entail[s]
the exercise of judgment grounded in policy concerns.”
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994) (internal quotation marks omitted). Return to our
TSA example. See supra, at 5. In most of their applica-
tions, terms like “liquids” and “gels” are clear enough.
(Traveler checklist: Pretzels OK; water not.) But resolving
the uncertain issues—the truffle pâtés or olive tapenades
of the world—requires getting in the weeds of the rule’s
policy: Why does TSA ban liquids and gels in the first
instance? What makes them dangerous? Can a potential
hijacker use pâté jars in the same way as soda cans? Or
take the less specialized-seeming ADA example. See
supra, at 4–5. It is easy enough to know what “compara-
ble lines of sight” means in a movie theater—but more
complicated when, as in sports arenas, spectators some-
times stand up. How costly is it to insist that the stadium
owner take that sporadic behavior into account, and is the
viewing value received worth the added expense? That
cost-benefit calculation, too, sounds more in policy than in
law. Or finally, take the more technical “moiety” example.
See supra, at 5–6. Or maybe, don’t. If you are a judge,
you probably have no idea of what the FDA’s rule means,
or whether its policy is implicated when a previously
10 KISOR v. WILKIE
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approved moiety is connected to lysine through a non-ester
covalent bond.
And Congress, we have thought, knows just that: It is
attuned to the comparative advantages of agencies over
courts in making such policy judgments. Agencies (unlike
courts) have “unique expertise,” often of a scientific or
technical nature, relevant to applying a regulation “to
complex or changing circumstances.” Martin, 499 U. S., at
151; see Thomas Jefferson, 512 U. S., at 512. Agencies
(unlike courts) can conduct factual investigations, can
consult with affected parties, can consider how their ex-
perts have handled similar issues over the long course of
administering a regulatory program. See Long Island
Care at Home, Ltd. v. Coke, 551 U.S. 158, 167–168 (2007).
And agencies (again unlike courts) have political account-
ability, because they are subject to the supervision of the
President, who in turn answers to the public. See Free
Enterprise Fund v. Public Company Accounting Oversight
Bd., 561 U.S. 477, 499 (2010); Pauley v. BethEnergy
Mines, Inc., 501 U.S. 680, 696 (1991) (discussing as a
matter of democratic accountability the “proper roles of
the political and judicial branches” in filling regulatory
gaps). It is because of those features that Congress, when
first enacting a statute, assigns rulemaking power to an
agency and thus authorizes it to fill out the statutory
scheme. And so too, when new issues demanding new
policy calls come up within that scheme, Congress pre-
sumably wants the same agency, rather than any court, to
take the laboring oar.
Finally, the presumption we use reflects the well-known
benefits of uniformity in interpreting genuinely ambigu-
ous rules. We have noted Congress’s frequent “preference
for resolving interpretive issues by uniform administrative
decision, rather than piecemeal by litigation.” Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980). That
preference may be strongest when the interpretive issue
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arises in the context of a “complex and highly technical
regulatory program.” Thomas Jefferson, 512 U. S., at 512.
After all, judges are most likely to come to divergent con-
clusions when they are least likely to know what they are
doing. (Is there anything to be said for courts all over the
country trying to figure out what makes for a new active
moiety?) But the uniformity justification retains some
weight even for more accessible rules, because their lan-
guage too may give rise to more than one eminently rea-
sonable reading. Consider Auer itself. See supra, at 6.
There, four Circuits held that police captains were “subject
to” pay deductions for disciplinary infractions if a police
manual said they were, even if the department had never
docked anyone. Two other Circuits held that captains
were “subject to” pay deductions only if the department’s
actual practice made that punishment a realistic possibil-
ity. See Auer, 519 U. S., at 460. Had the agency issued an
interpretation before all those rulings (rather than, as
actually happened, in a brief in this Court), a deference
rule would have averted most of that conflict and uncer-
tainty. See Christopher v. SmithKline Beecham Corp., 567
U.S. 142, 158, n. 17 (2012) (noting for this reason that
Auer deference imparts “predictability to the administra-
tive process” (internal quotation marks omitted)). Auer
deference thus serves to ensure consistency in federal
regulatory law, for everyone who needs to know what it
requires.
B
But all that said, Auer deference is not the answer to
every question of interpreting an agency’s rules. Far from
it. As we explain in this section, the possibility of defer-
ence can arise only if a regulation is genuinely ambiguous.
And when we use that term, we mean it—genuinely am-
biguous, even after a court has resorted to all the standard
tools of interpretation. Still more, not all reasonable
12 KISOR v. WILKIE
Opinion of the Court
agency constructions of those truly ambiguous rules are
entitled to deference. As just explained, we presume that
Congress intended for courts to defer to agencies when
they interpret their own ambiguous rules. See supra, at
7–11. But when the reasons for that presumption do not
apply, or countervailing reasons outweigh them, courts
should not give deference to an agency’s reading, except to
the extent it has the “power to persuade.” Christopher,
567 U. S., at 159 (quoting Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)). We have thus cautioned that Auer
deference is just a “general rule”; it “does not apply in all
cases.” Christopher, 567 U. S., at 155. And although the
limits of Auer deference are not susceptible to any rigid
test, we have noted various circumstances in which such
deference is “unwarranted.” Ibid. In particular, that will
be so when a court concludes that an interpretation does
not reflect an agency’s authoritative, expertise-based,
“fair[, or] considered judgment.” Ibid. (quoting Auer, 519
U. S., at 462); cf. United States v. Mead Corp., 533 U.S.
218, 229–231 (2001) (adopting a similar approach to Chev-
ron deference).
We take the opportunity to restate, and somewhat
expand on, those principles here to clear up some mixed
messages we have sent. At times, this Court has applied
Auer deference without significant analysis of the underly-
ing regulation. See, e.g., United States v. Larionoff, 431
U.S. 864, 872 (1977) (stating that the Court “need not
tarry” over the regulation’s language given Seminole
Rock). At other times, the Court has given Auer deference
without careful attention to the nature and context of the
interpretation. See, e.g., Thorpe v. Housing Authority of
Durham, 393 U.S. 268, 276, and nn. 22–23 (1969) (defer-
ring to an agency’s view as expressed in letters to third
parties). And in a vacuum, our most classic formulation of
the test—whether an agency’s construction is “plainly
erroneous or inconsistent with the regulation,” Seminole
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Rock, 325 U. S., at 414—may suggest a caricature of the
doctrine, in which deference is “reflexive.” Pereira v.
Sessions, 585 U.S. ___, ___ (2018) (Kennedy, J., concur-
ring) (slip op., at 2). So we cannot deny that Kisor has a
bit of grist for his claim that Auer “bestows on agencies
expansive, unreviewable” authority. Brief for Petitioner
25. But in fact Auer does no such thing: It gives agencies
their due, while also allowing—indeed, obligating—courts
to perform their reviewing and restraining functions. So
before we turn to Kisor’s specific grievances, we think it
worth reinforcing some of the limits inherent in the Auer
doctrine.4
First and foremost, a court should not afford Auer defer-
ence unless the regulation is genuinely ambiguous. See
Christensen v. Harris County, 529 U.S. 576, 588 (2000);
Seminole Rock, 325 U. S., at 414 (deferring only “if the
meaning of the words used is in doubt”). If uncertainty
does not exist, there is no plausible reason for deference.
The regulation then just means what it means—and the
court must give it effect, as the court would any law.
Otherwise said, the core theory of Auer deference is that
sometimes the law runs out, and policy-laden choice is
what is left over. See supra, at 9–10. But if the law gives
an answer—if there is only one reasonable construction of
a regulation—then a court has no business deferring to
any other reading, no matter how much the agency insists
it would make more sense. Deference in that circum-
stance would “permit the agency, under the guise of inter-
preting a regulation, to create de facto a new regulation.”
See Christensen, 529 U. S., at 588. Auer does not, and
indeed could not, go that far.
And before concluding that a rule is genuinely ambigu-
——————
4 The proper understanding of the scope and limits of the Auer doc-
trine is, of course, not set out in any of the opinions that concur only in
the judgment.
14 KISOR v. WILKIE
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ous, a court must exhaust all the “traditional tools” of
construction. Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984)
(adopting the same approach for ambiguous statutes). For
again, only when that legal toolkit is empty and the inter-
pretive question still has no single right answer can a
judge conclude that it is “more [one] of policy than of law.”
Pauley, 501 U. S., at 696. That means a court cannot
wave the ambiguity flag just because it found the regula-
tion impenetrable on first read. Agency regulations can
sometimes make the eyes glaze over. But hard interpre-
tive conundrums, even relating to complex rules, can often
be solved. See id., at 707 (Scalia, J., dissenting) (A regula-
tion is not ambiguous merely because “discerning the only
possible interpretation requires a taxing inquiry”). To
make that effort, a court must “carefully consider[ ]” the
text, structure, history, and purpose of a regulation, in all
the ways it would if it had no agency to fall back on. Ibid.
Doing so will resolve many seeming ambiguities out of the
box, without resort to Auer deference.
If genuine ambiguity remains, moreover, the agency’s
reading must still be “reasonable.” Thomas Jefferson, 512
U. S., at 515. In other words, it must come within the
zone of ambiguity the court has identified after employing
all its interpretive tools. (Note that serious application of
those tools therefore has use even when a regulation turns
out to be truly ambiguous. The text, structure, history,
and so forth at least establish the outer bounds of permis-
sible interpretation.) Some courts have thought (perhaps
because of Seminole Rock’s “plainly erroneous” formula-
tion) that at this stage of the analysis, agency construc-
tions of rules receive greater deference than agency con-
structions of statutes. See, e.g., Ohio Dept. of Medicaid v.
Price, 864 F.3d 469, 477 (CA6 2017). But that is not so.
Under Auer, as under Chevron, the agency’s reading must
fall “within the bounds of reasonable interpretation.”
Arlington v. FCC, 569 U.S. 290, 296 (2013). And let there
be no mistake: That is a requirement an agency can fail.
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Still, we are not done—for not every reasonable agency
reading of a genuinely ambiguous rule should receive Auer
deference. We have recognized in applying Auer that a
court must make an independent inquiry into whether the
character and context of the agency interpretation entitles
it to controlling weight. See Christopher, 567 U. S., at
155; see also Mead, 533 U. S., at 229–231, 236–237 (re-
quiring an analogous though not identical inquiry for
Chevron deference). As explained above, we give Auer
deference because we presume, for a set of reasons relat-
ing to the comparative attributes of courts and agencies,
that Congress would have wanted us to. See supra, at 7–
11. But the administrative realm is vast and varied, and
we have understood that such a presumption cannot al-
ways hold. Cf. Mead, 533 U. S., at 236 (“tailor[ing] defer-
ence to [the] variety” of administrative action); Arlington,
569 U. S., at 309–310 (BREYER, J., concurring in part and
concurring in judgment) (noting that “context-specific[ ]
factors” may show that “Congress would [not] have in-
tended the agency to resolve [some] ambiguity”). The
inquiry on this dimension does not reduce to any exhaus-
tive test. But we have laid out some especially important
markers for identifying when Auer deference is and is not
appropriate.
To begin with, the regulatory interpretation must be one
actually made by the agency. In other words, it must be
the agency’s “authoritative” or “official position,” rather
than any more ad hoc statement not reflecting the agen-
cy’s views. Mead, 533 U. S., at 257–259, and n. 6 (Scalia,
J., dissenting). That constraint follows from the logic of
Auer deference—because Congress has delegated rulemak-
ing power, and all that typically goes with it, to the agency
alone. Of course, the requirement of “authoritative” action
must recognize a reality of bureaucratic life: Not every-
thing the agency does comes from, or is even in the name
of, the Secretary or his chief advisers. So, for example, we
16 KISOR v. WILKIE
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have deferred to “official staff memoranda” that were
“published in the Federal Register,” even though never
approved by the agency head. Ford Motor Credit, 444
U. S., at 566, n. 9, 567, n. 10 (declining to “draw a radical
distinction between” agency heads and staff for Auer
deference). But there are limits. The interpretation must
at the least emanate from those actors, using those vehi-
cles, understood to make authoritative policy in the rele-
vant context. See, e.g., Paralyzed Veterans, 117 F. 3d, at
587 (refusing to consider a “speech of a mid-level official”
as an “authoritative departmental position”); N. Y. State
Dept. of Social Servs. v. Bowen, 835 F.2d 360, 365–366
(CADC 1987) (rejecting the idea that an “informal memo-
randum” recounting a telephone conversation between
employees could count as an “authoritative pronounce-
ment”); Exelon Generation Co. v. Local 15, Int’l Brother-
hood of Elec. Workers, AFL–CIO, 676 F.3d 566, 576–578
(CA7 2012) (declining deference when the agency had
itself “disclaimed the use of regulatory guides as authori-
tative”). If the interpretation does not do so, a court may
not defer.
Next, the agency’s interpretation must in some way
implicate its substantive expertise. Administrative
knowledge and experience largely “account [for] the pre-
sumption that Congress delegates interpretive lawmaking
power to the agency.” Martin, 499 U. S., at 153. So the
basis for deference ebbs when “[t]he subject matter of the
[dispute is] distan[t] from the agency’s ordinary” duties or
“fall[s] within the scope of another agency’s authority.”
Arlington, 569 U. S., at 309 (opinion of BREYER, J.). This
Court indicated as much when it analyzed a “split en-
forcement” scheme, in which Congress divided regulatory
power between two entities. Martin, 499 U. S., at 151. To
decide “whose reasonable interpretation” of a rule con-
trolled, we “presum[ed] Congress intended to invest inter-
pretive power” in whichever actor was “best position[ed] to
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develop” expertise about the given problem. Id., at 149,
153. The same idea holds good as between agencies and
courts. “Generally, agencies have a nuanced understand-
ing of the regulations they administer.” Brief for Re-
spondent 33. That point is most obvious when a rule is
technical; think back to our “moiety” or “diagnosis” exam-
ples. See supra, at 5–6. But more prosaic-seeming ques-
tions also commonly implicate policy expertise; consider
the TSA assessing the security risks of pâté or a disabili-
ties office weighing the costs and benefits of an accommo-
dation. See ibid. Once again, though, there are limits.
Some interpretive issues may fall more naturally into a
judge’s bailiwick. Take one requiring the elucidation of a
simple common-law property term, see Jicarilla Apache
Tribe v. FERC, 578 F.2d 289, 292–293 (CA10 1978), or
one concerning the award of an attorney’s fee, see West Va.
Highlands Conservancy, Inc. v. Norton, 343 F.3d 239(CA4 2003). Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638,
649–650 (1990) (declining to award Chevron deference
when an agency interprets a judicial-review provision).
When the agency has no comparative expertise in resolv-
ing a regulatory ambiguity, Congress presumably would
not grant it that authority.5
Finally, an agency’s reading of a rule must reflect “fair
and considered judgment” to receive Auer deference.
Christopher, 567 U. S., at 155 (quoting Auer, 519 U. S., at
462). That means, we have stated, that a court should
decline to defer to a merely “convenient litigating position”
or “post hoc rationalizatio[n] advanced” to “defend past
agency action against attack.” Christopher, 567 U. S., at
——————
5 For a similar reason, this Court has denied Auer deference when an
agency interprets a rule that parrots the statutory text. See Gonzales
v. Oregon, 546 U.S. 243, 257 (2006). An agency, we explained, gets no
“special authority to interpret its own words when, instead of using its
expertise and experience to formulate a regulation, it has elected
merely to paraphrase the statutory language.” Ibid.
18 KISOR v. WILKIE
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155 (quoting Bowen v. Georgetown Univ. Hospital, 488
U.S. 204, 213 (1988) and Auer, 519 U. S., at 462).6 And a
court may not defer to a new interpretation, whether or
not introduced in litigation, that creates “unfair surprise”
to regulated parties. Long Island Care, 551 U. S., at 170.
That disruption of expectations may occur when an agency
substitutes one view of a rule for another. We have there-
fore only rarely given Auer deference to an agency con-
struction “conflict[ing] with a prior” one. Thomas Jeffer-
son, 512 U. S., at 515. Or the upending of reliance may
happen without such an explicit interpretive change. This
Court, for example, recently refused to defer to an inter-
pretation that would have imposed retroactive liability on
parties for longstanding conduct that the agency had
never before addressed. See Christopher, 567 U. S., at
155–156. Here too the lack of “fair warning” outweighed
the reasons to apply Auer. Id., at 156 (internal quotation
marks omitted).
* * *
The upshot of all this goes something as follows. When
it applies, Auer deference gives an agency significant
leeway to say what its own rules mean. In so doing, the
doctrine enables the agency to fill out the regulatory
scheme Congress has placed under its supervision. But
that phrase “when it applies” is important—because it
often doesn’t. As described above, this Court has cabined
——————
6 The general rule, then, is not to give deference to agency interpreta-
tions advanced for the first time in legal briefs. See Bowen, 488 U. S.,
at 212–213. But we have not entirely foreclosed that practice. Auer
itself deferred to a new regulatory interpretation presented in an
amicus curiae brief in this Court. There, the agency was not a party to
the litigation, and had expressed its views only in response to the
Court’s request. “[I]n the circumstances,” the Court explained, “[t]here
[was] simply no reason to suspect that the interpretation [did] not
reflect the agency’s fair and considered judgment on the matter in
question.” Auer, 519 U. S., at 462.
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Auer’s scope in varied and critical ways—and in exactly
that measure, has maintained a strong judicial role in
interpreting rules. What emerges is a deference doctrine
not quite so tame as some might hope, but not nearly so
menacing as they might fear.
III
That brings us to the lone question presented here—
whether we should abandon the longstanding doctrine just
described. In contending that we should, Kisor raises
statutory, policy, and constitutional claims (in that order).
But he faces an uphill climb. He must first convince us
that Auer deference is wrong. And even then, he must
overcome stare decisis—the special care we take to pre-
serve our precedents. In the event, Kisor fails at the first
step: None of his arguments provide good reason to doubt
Auer deference. And even if that were not so, Kisor does
not offer the kind of special justification needed to over-
rule Auer, and Seminole Rock, and all our many other
decisions deferring to reasonable agency constructions of
ambiguous rules.
A
Kisor first attacks Auer as inconsistent with the judicial
review provision of the Administrative Procedure Act
(APA). See 5 U.S. C. §706. As Kisor notes, Congress
enacted the APA in 1946—the year after Seminole Rock—
to serve as “the fundamental charter of the administrative
state.” Brief for Petitioner 26 (internal quotation marks
omitted). Section 706 of the Act, governing judicial review
of agency action, states (among other things) that review-
ing courts shall “determine the meaning or applicability of
the terms of an agency action” (including a regulation).
According to Kisor, Auer violates that edict by thwarting
“meaningful judicial review” of agency rules. Brief for
Petitioner 29. Courts under Auer, he asserts (now in the
20 KISOR v. WILKIE
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language of Section 706), “abdicate their office of deter-
mining the meaning” of a regulation. Id., at 27 (internal
quotation marks omitted).
To begin with, that argument ignores the many ways,
discussed above, that courts exercise independent review
over the meaning of agency rules. See supra, at 13–18. As
we have explained, a court must apply all traditional
methods of interpretation to any rule, and must enforce
the plain meaning those methods uncover. There can be
no thought of deference unless, after performing that
thoroughgoing review, the regulation remains genuinely
susceptible to multiple reasonable meanings and the
agency’s interpretation lines up with one of them. And
even if that is the case, courts must on their own deter-
mine whether the nature or context of the agency’s con-
struction reverses the usual presumption of deference.
Most notably, a court must consider whether the interpre-
tation is authoritative, expertise-based, considered, and
fair to regulated parties. All of that figures as “meaning-
ful judicial review.” Brief for Petitioner 29.
And even when a court defers to a regulatory reading, it
acts consistently with Section 706. That provision does
not specify the standard of review a court should use in
“determin[ing] the meaning” of an ambiguous rule. 5
U.S. C. §706. One possibility, as Kisor says, is to review
the issue de novo. But another is to review the agency’s
reading for reasonableness. To see the point, assume that
a regulatory (say, an employment) statute expressly in-
structed courts to apply Auer deference when reviewing an
agency’s interpretations of its ambiguous rules. Nothing
in that statute would conflict with Section 706. Instead,
the employment law would simply make clear how a court
is to “determine the meaning” of such a rule—by deferring
to an agency’s reasonable reading. Ibid. Of course, that is
not the world we know: Most substantive statutes do not
say anything about Auer deference, one way or the other.
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But for all the reasons spelled out above, we have long
presumed (subject always to rebuttal) that the Congress
delegating regulatory authority to an agency intends as
well to give that agency considerable latitude to construe
its ambiguous rules. See supra, at 7–11. And that pre-
sumption operates just like the hypothesized statute
above. Because of it, once again, courts do not violate
Section 706 by applying Auer. To the contrary, they fulfill
their duty to “determine the meaning” of a rule precisely
by deferring to the agency’s reasonable reading. See
Sunstein & Vermeule, The Unbearable Rightness of Auer,
84 U. Chi. L. Rev. 297, 306 (2017) (If Congress intends
“that the meaning of a regulation turns on the agency’s
interpretation of its meaning,” then courts comply with
Section 706’s command to “ ‘determine the meaning’ [of the
regulation] by deferring to that view”); cf. Arlington, 569
U. S., at 317 (ROBERTS, C. J., dissenting) (similarly ad-
dressing why Chevron deference comports with Section
706). Section 706 and Auer thus go hand in hand.
That is especially so given the practice of judicial review
at the time of the APA’s enactment. Section 706 was
understood when enacted to “restate[] the present law as
to the scope of judicial review.” See Dept. of Justice, At-
torney General’s Manual on the Administrative Procedure
Act 108 (1947); see also Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S.
519, 546 (1978) (noting that this Court gives some defer-
ence to the Manual “because of the role played by the
Department of Justice in drafting the legislation”). We
have thus interpreted the APA not to “significantly alter
the common law of judicial review of agency action.”
Heckler v. Chaney, 470 U.S. 821, 832 (1985) (internal
quotation marks omitted). That pre-APA common law
included Seminole Rock itself (decided the year before)
along with prior decisions foretelling that ruling. See
supra, at 7. Even assume that the deference regime laid
22 KISOR v. WILKIE
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out in those cases had not yet fully taken hold. At a min-
imum, nothing in the law of that era required all judicial
review of agency interpretations to be de novo. Cf. Man-
ning, Constitutional Structure and Judicial Deference to
Agency Interpretations of Agency Rules, 96 Colum. L. Rev.
612, 635–636 (1996) (arguing that courts before the APA
used “flexible, common law methods to review administra-
tive action”). And so nothing suggests that Section 706
imposes that requirement. Or otherwise said: If Section
706 did not change the law of judicial review (as we have
long recognized), then it did not proscribe a deferential
standard then known and in use.
Kisor next claims that Auer circumvents the APA’s
rulemaking requirements. Section 553, as Kisor notes,
mandates that an agency use notice-and-comment proce-
dures before issuing legislative rules. See 5 U.S. C.
§§553(b), (c). But the section allows agencies to issue
“interpret[ive]” rules without notice and comment. See
§553(b)(A). A key feature of those rules is that (unlike
legislative rules) they are not supposed to “have the force
and effect of law”—or, otherwise said, to bind private
parties. Perez v. Mortgage Bankers Assn., 575 U.S. 92,
___ (2015) (slip op., at 3) (internal quotation marks omit-
ted). Instead, interpretive rules are meant only to “advise
the public” of how the agency understands, and is likely to
apply, its binding statutes and legislative rules. Ibid. But
consider, Kisor argues, what happens when a court gives
Auer deference to an interpretive rule. The result, he
asserts, is to make a rule that has never gone through
notice and comment binding on the public. See Brief for
Petitioner 21, 29. Or put another way, the interpretive
rule ends up having the “force and effect of law” without
ever paying the procedural cost. Mortgage Bankers, 575
U. S., at ___ (slip op., at 3).
But this Court rejected the identical argument just a
few years ago, and for good reason. In Mortgage Bankers,
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we held that interpretive rules, even when given Auer
deference, do not have the force of law. See 575 U. S., at
___, and n. 4 (slip op., at 10, and n. 4). An interpretive
rule itself never forms “the basis for an enforcement ac-
tion”—because, as just noted, such a rule does not impose
any “legally binding requirements” on private parties.
National Min. Assn. v. McCarthy, 758 F.3d 243, 251
(CADC 2014). An enforcement action must instead rely on
a legislative rule, which (to be valid) must go through
notice and comment. And in all the ways discussed above,
the meaning of a legislative rule remains in the hands of
courts, even if they sometimes divine that meaning by
looking to the agency’s interpretation. See supra, at 13–
18. Courts first decide whether the rule is clear; if it is
not, whether the agency’s reading falls within its zone of
ambiguity; and even if the reading does so, whether it
should receive deference. In short, courts retain the final
authority to approve—or not—the agency’s reading of a
notice-and-comment rule. See Mortgage Bankers, 575
U. S., at ___, n. 4 (slip op., at 10, n. 4) (“[I]t is the court
that ultimately decides whether a given regulation means
what the agency says”). No binding of anyone occurs
merely by the agency’s say-so.
And indeed, a court deciding whether to give Auer def-
erence must heed the same procedural values as Section
553 reflects. Remember that a court may defer to only an
agency’s authoritative and considered judgments. See
supra, at 15–18. No ad hoc statements or post hoc ration-
alizations need apply. And recall too that deference turns
on whether an agency’s interpretation creates unfair
surprise or upsets reliance interests. See supra, at 18. So
an agency has a strong incentive to circulate its interpre-
tations early and widely. In such ways, the doctrine of
Auer deference reinforces, rather than undermines, the
ideas of fairness and informed decisionmaking at the core
of the APA.
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To supplement his two APA arguments, Kisor turns to
policy, leaning on a familiar claim about the incentives
Auer creates. According to Kisor, Auer encourages agen-
cies to issue vague and open-ended regulations, confident
that they can later impose whatever interpretation of
those rules they prefer. See Brief for Petitioner 37–41.
That argument received its fullest elaboration in a widely
respected law review article pre-dating Auer. See Man-
ning, 96 Colum. L. Rev., at 654–669. More recently, the
concern about such self-delegation has appeared in opin-
ions from this Court, starting with several from Justice
Scalia calling for Auer’s reconsideration. See, e.g., Chris-
topher, 567 U. S., at 158 (citing Manning, supra, at 655–
668); Decker v. Northwest Environmental Defense Center,
568 U.S. 597, 620–621 (2013) (Scalia, J., concurring in
part and dissenting in part) (citing Manning, supra); Talk
America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50,
69 (2011) (Scalia, J., concurring) (principally relying on
Manning, supra).
But the claim has notable weaknesses, empirical and
theoretical alike. First, it does not survive an encounter
with experience. No real evidence—indeed, scarcely an
anecdote—backs up the assertion. As two noted scholars
(one of whom reviewed thousands of rules during four
years of government service) have written: “[W]e are
unaware of, and no one has pointed to, any regulation in
American history that, because of Auer, was designed
vaguely.” Sunstein & Vermeule, 84 U. Chi. L. Rev., at
308. And even the argument’s theoretical allure dissi-
pates upon reflection. For strong (almost surely stronger)
incentives and pressures cut in the opposite direction.
“[R]egulators want their regulations to be effective, and
clarity promotes compliance.” Brief for Administrative
Law Scholars as Amici Curiae 18–19. Too, regulated
parties often push for precision from an agency, so that
they know what they can and cannot do. And ambiguities
Cite as: 588 U. S. ____ (2019) 25
Opinion of the Court
in rules pose risks to the long-run survival of agency pol-
icy. Vagueness increases the chance of adverse judicial
rulings. And it enables future administrations, with
different views, to reinterpret the rules to their own liking.
Add all of that up and Kisor’s ungrounded theory of incen-
tives contributes nothing to the case against Auer.
Finally, Kisor goes big, asserting (though fleetingly) that
Auer deference violates “separation-of-powers principles.”
See Brief for Petitioner 43. In his view, those principles
prohibit “vest[ing] in a single branch the law-making and
law-interpreting functions.” Id., at 45. If that objection is
to agencies’ usurping the interpretive role of courts, this
opinion has already met it head-on. Properly understood
and applied, Auer does no such thing. In all the ways we
have described, courts retain a firm grip on the interpre-
tive function. See supra, at 13–18; Mortgage Bankers, 575
U. S., at ___, n. 4 (slip op., at 10, n. 4). If Kisor’s objection
is instead to the supposed commingling of functions (that
is, the legislative and judicial) within an agency, this
Court has answered it often before. See, e.g., Withrow v.
Larkin, 421 U.S. 35, 54 (1975) (permitting such a combi-
nation of functions); FTC v. Cement Institute, 333 U.S.
683, 702 (1948) (same). That sort of mixing is endemic in
agencies, and has been “since the beginning of the Repub-
lic.” Arlington, 569 U. S., at 304–305, n. 4. It does not
violate the separation of powers, we have explained, be-
cause even when agency “activities take ‘legislative’ and
‘judicial’ forms,” they continue to be “exercises of[ ] the
‘executive Power’ ”—or otherwise said, ways of executing a
statutory plan. Ibid. (quoting U. S. Const., Art. II, §1,
cl. 1). So Kisor’s last argument to dispatch Auer deference
fails as roundly as the rest.
B
If all that were not enough, stare decisis cuts strongly
against Kisor’s position. “Overruling precedent is never a
26 KISOR v. WILKIE
Opinion of the Court
small matter.” Kimble v. Marvel Entertainment, LLC, 576
U.S. ___, ___ (2015) (slip op., at 7). Adherence to prece-
dent is “a foundation stone of the rule of law.” Michigan v.
Bay Mills Indian Community, 572 U.S. 782, 798 (2014).
“[I]t promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501
U.S. 808, 827 (1991). To be sure, stare decisis is “not an
inexorable command.” Id., at 828. But any departure
from the doctrine demands “special justification”—
something more than “an argument that the precedent
was wrongly decided.” Halliburton Co. v. Erica P. John
Fund, Inc., 573 U.S. 258, 266 (2014).
And that is even more than usually so in the circum-
stances here. First, Kisor asks us to overrule not a single
case, but a “long line of precedents”—each one reaffirming
the rest and going back 75 years or more. Bay Mills, 572
U. S., at 798; see nn. 2, 3, supra. This Court alone has
applied Auer or Seminole Rock in dozens of cases, and
lower courts have done so thousands of times. Deference
to reasonable agency interpretations of ambiguous rules
pervades the whole corpus of administrative law. Second,
because that is so, abandoning Auer deference would cast
doubt on many settled constructions of rules. As Kisor
acknowledged at oral argument, a decision in his favor
would allow relitigation of any decision based on Auer,
forcing courts to “wrestle [with] whether or not Auer” had
actually made a difference. Tr. of Oral Arg. 30; see id., at
47 (Solicitor General agreeing that “every single regula-
tion that’s currently on the books whose interpretation has
been established under Seminole Rock now [would have]
to be relitigated anew”). It is the rare overruling that
introduces so much instability into so many areas of law,
all in one blow.
And third, even if we are wrong about Auer, “Congress
Cite as: 588 U. S. ____ (2019) 27
Opinion of the Court
remains free to alter what we have done.” Patterson v.
McLean Credit Union, 491 U.S. 164, 172–173 (1989)
(stating that when that is so, “[c]onsiderations of stare
decisis have special force”). In a constitutional case, only
we can correct our error. But that is not so here. Our
deference decisions are “balls tossed into Congress’s court,
for acceptance or not as that branch elects.” Kimble, 576
U. S., at ___ (slip op., at 8). And so far, at least, Congress
has chosen acceptance. It could amend the APA or any
specific statute to require the sort of de novo review of
regulatory interpretations that Kisor favors. Instead, for
approaching a century, it has let our deference regime
work side-by-side with both the APA and the many stat-
utes delegating rulemaking power to agencies. It has done
so even after we made clear that our deference decisions
reflect a presumption about congressional intent. See
Martin, 499 U. S., at 151; supra, at 7–8. And it has done
so even after Members of this Court began to raise ques-
tions about the doctrine. See, e.g., Talk America, 564
U. S., at 67–69 (Scalia, J., concurring). Given that his-
tory—and Congress’s continuing ability to take up Kisor’s
arguments—we would need a particularly “special justifi-
cation” to now reverse Auer.
Kisor offers nothing of that ilk. Nearly all his argu-
ments about abandoning precedent are variants of his
merits claims. We hear again, if in different parts of his
briefs, that Auer deference frustrates “the policies embod-
ied in the APA” and violates the separation of powers.
Reply Brief 13, and n. 5; Brief for Petitioner 47–48. More
generally, we learn that Seminole Rock was “wrong on its
own terms” and “badly reasoned.” Id., at 47 (internal
quotation marks omitted). Of course, it is good—and
important—for our opinions to be right and well-reasoned.
But that is not the test for overturning precedent. Kisor
does not claim that Auer deference is “unworkable,” a
traditional basis for overruling a case. Patterson, 491
28 KISOR v. WILKIE
Opinion of the Court
U. S., at 173. Nor does he point to changes in legal rules
that make Auer a “doctrinal dinosaur.” Kimble, 576 U. S.,
at ___ (slip op., at 11). All he can muster is that “[t]he
administrative state has evolved substantially since 1945.”
Brief for Petitioner 53. We do not doubt the point (al-
though we note that Auer and other key deference decisions
came along after most of that evolution took place). Still
more, we agree with Kisor that administrative law doc-
trines must take account of the far-reaching influence of
agencies and the opportunities such power carries for
abuse. That is one reason we have taken care today to
reinforce the limits of Auer deference, and to emphasize
the critical role courts retain in interpreting rules. But it
is no answer to the growth of agencies for courts to take
over their expertise-based, policymaking functions. Who
knows? Maybe in 1945, the FDA was not thinking about
“active moieties.” See supra, at 5–6. But still, today—just
as Seminole Rock and Auer held—it should have leeway to
say what that term means.
IV
With that, we can finally return to Kisor’s own case.
You may remember that his retroactive benefits depend on
the meaning of the term “relevant” records in a VA regula-
tion. See supra, at 2–3. The Board of Veterans’ Appeals,
through a single judge’s opinion, understood records to be
relevant only if they relate to the basis of the VA’s initial
denial of benefits. By contrast, Kisor argued that records
are relevant if they go to any benefits criterion, even one
that was uncontested. The Federal Circuit upheld the
Board’s interpretation based on Auer deference.
Applying the principles outlined in this opinion, we hold
that a redo is necessary for two reasons. First, the Federal
Circuit jumped the gun in declaring the regulation
ambiguous. We have insisted that a court bring all its
interpretive tools to bear before finding that to be so. See
Cite as: 588 U. S. ____ (2019) 29
Opinion of the Court
supra, at 13–14. It is not enough to casually remark, as
the court did here, that “[b]oth parties insist that the plain
regulatory language supports their case, and neither
party’s position strikes us as unreasonable.” 869 F. 3d, at
1368; see supra, at 13–14. Rather, the court must make a
conscientious effort to determine, based on indicia like
text, structure, history, and purpose, whether the regula-
tion really has more than one reasonable meaning. The
Solicitor General argued in this Court that the Board’s
reading is the only reasonable one. See Brief for Respond-
ent 49–50. Perhaps Kisor will make the converse claim
below. Before even considering deference, the court must
seriously think through those positions.
And second, the Federal Circuit assumed too fast that
Auer deference should apply in the event of genuine ambi-
guity. As we have explained, that is not always true. A
court must assess whether the interpretation is of the sort
that Congress would want to receive deference. See supra,
at 15–18. The Solicitor General suggested at oral argu-
ment that the answer in this case might be no. He ex-
plained that all 100 or so members of the VA Board act
individually (rather than in panels) and that their roughly
80,000 annual decisions have no “precedential value.” Tr.
of Oral Arg. 64. He thus questioned whether a Board
member’s ruling “reflects the considered judgment of the
agency as a whole.” Ibid.; cf. Mead, 533 U. S., at 233
(declining to give Chevron deference to rulings “being
churned out at a rate of 10,000 a year at an agency’s 46
scattered offices”). We do not know what position the
Government will take on that issue below. But the ques-
tions the Solicitor General raised are exactly the kind the
court must consider in deciding whether to award Auer
deference to the Board’s interpretation.
We accordingly vacate the judgment below and remand
the case for further proceedings.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
ROBERTS
ROBERTS , C.concurring
, C. J., J., concurring
in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–15
_________________
JAMES L. KISOR, PETITIONER v. ROBERT WILKIE,
SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 26, 2019]
CHIEF JUSTICE ROBERTS, concurring in part.
I join Parts I, II–B, III–B, and IV of the Court’s opinion.
We took this case to consider whether to overrule Auer v.
Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410 (1945). For the reasons
the Court discusses in Part III–B, I agree that overruling
those precedents is not warranted. I also agree with the
Court’s treatment in Part II–B of the bounds of Auer
deference.
I write separately to suggest that the distance between
the majority and JUSTICE GORSUCH is not as great as it
may initially appear. The majority catalogs the prerequi-
sites for, and limitations on, Auer deference: The underly-
ing regulation must be genuinely ambiguous; the agency’s
interpretation must be reasonable and must reflect its
authoritative, expertise-based, and fair and considered
judgment; and the agency must take account of reliance
interests and avoid unfair surprise. JUSTICE GORSUCH,
meanwhile, lists the reasons that a court might be per-
suaded to adopt an agency’s interpretation of its own
regulation: The agency thoroughly considered the problem,
offered a valid rationale, brought its expertise to bear, and
interpreted the regulation in a manner consistent with
earlier and later pronouncements. Accounting for varia-
tions in verbal formulation, those lists have much in
2 KISOR v. WILKIE
ROBERTS
ROBERTS , C.concurring
, C. J., J., concurring
in part
common.
That is not to say that Auer deference is just the same
as the power of persuasion discussed in Skidmore v. Swift
& Co., 323 U.S. 134 (1944); 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 it is to say
that the cases in which Auer deference is warranted largely
overlap with the cases in which it would be unreasonable
for a court not to be persuaded by an agency’s interpre-
tation of its own regulation.
One further point: Issues surrounding judicial deference
to agency interpretations of their own regulations are
distinct from those raised in connection with judicial
deference to agency interpretations of statutes enacted by
Congress. See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). I do not re-
gard the Court’s decision today to touch upon the latter
question.
Cite as: 588 U. S. ____ (2019) 1
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–15
_________________
JAMES L. KISOR, PETITIONER v. ROBERT WILKIE,
SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 26, 2019]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
with whom JUSTICE KAVANAUGH joins as to Parts I, II, III,
IV, and V, and with whom JUSTICE ALITO joins as to Parts
I, II, and III, concurring in the judgment.
It should have been easy for the Court to say goodbye to
Auer v. Robbins.1 In disputes involving the relationship
between the government and the people, Auer requires
judges to accept an executive agency’s interpretation of its
own regulations even when that interpretation doesn’t
represent the best and fairest reading. This rule creates a
“systematic judicial bias in favor of the federal govern-
ment, the most powerful of parties, and against everyone
else.”2 Nor is Auer’s biased rule the product of some con-
gressional mandate we are powerless to correct: This
Court invented it, almost by accident and without any
meaningful effort to reconcile it with the Administrative
Procedure Act or the Constitution. A legion of academics,
lower court judges, and Members of this Court—even
Auer’s author—has called on us to abandon Auer. Yet
today a bare majority flinches, and Auer lives on.
Still, today’s decision is more a stay of execution than a
——————
1 519 U.S. 452 (1997).
2 Larkin & Slattery, The World After Seminole Rock and Auer, 42
Harv. J. L. & Pub. Pol’y 625, 641 (2019) (internal quotation marks
omitted).
2 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
pardon. The Court cannot muster even five votes to say
that Auer is lawful or wise. Instead, a majority retains
Auer only because of stare decisis. And yet, far from
standing by that precedent, the majority proceeds to im-
pose so many new and nebulous qualifications and limita-
tions on Auer that THE CHIEF JUSTICE claims to see little
practical difference between keeping it on life support in
this way and overruling it entirely. So the doctrine
emerges maimed and enfeebled—in truth, zombified.
Respectfully, we owe our colleagues on the lower courts
more candid and useful guidance than this. And judges
owe the people who come before them nothing less than a
fair contest, where every party has an equal chance to
persuade the court of its interpretation of the law’s de-
mands. One can hope that THE CHIEF JUSTICE is right,
and that whether we formally overrule Auer or merely
neuter it, the results in most cases will prove the same.
But means, not just ends, matter, and retaining even this
debilitated version of Auer threatens to force litigants and
lower courts to jump through needless and perplexing new
hoops and in the process deny the people the independent
judicial decisions they deserve. All to what end? So that
we may pretend to abide stare decisis?
Consider this case. Mr. Kisor is a Marine who lost out
on benefits for post-traumatic stress disorder when the
court of appeals deferred to a regulatory interpretation
advanced by the Department of Veterans Affairs. The
court of appeals was guilty of nothing more than faithfully
following Auer. But the majority today invokes stare
decisis, of all things, to vacate that judgment and tell the
court of appeals to try again using its newly retooled,
multi-factored, and far less determinate version of Auer.
Respectfully, I would stop this business of making up
excuses for judges to abdicate their job of interpreting the
law, and simply allow the court of appeals to afford Mr.
Kisor its best independent judgment of the law’s meaning.
Cite as: 588 U. S. ____ (2019) 3
GORSUCH, J., concurring in judgment
The Court’s failure to be done with Auer, and its deci-
sion to adorn Auer with so many new and ambiguous
limitations, all but guarantees we will have to pass this
way again. When that day comes, I hope this Court will
find the nerve it lacks today and inter Auer at last. Until
then, I hope that our judicial colleagues on other courts
will take courage from today’s ruling and realize that it
has transformed Auer into a paper tiger.
I. How We Got Here
Where did Auer come from? Not from the Constitution,
some ancient common law tradition, or even a modern
statute. Instead, it began as an unexplained aside in a
decision about emergency price controls at the height of
the Second World War. Even then, the dictum sat on the
shelf, little noticed, for years. Only in the last few decades
of the 20th century did lawyers and courts really begin to
dust it off and shape it into the reflexive rule of deference
to regulatory agencies we know today. And they did so
without ever pausing to consider whether a rule like that
could be legally justified or even made sense. Auer is
really little more than an accident.
A
Before the mid-20th century, few federal agencies en-
gaged in extensive rulemaking, and those that did rarely
sought deference for their regulatory interpretations.3 But
when the question arose, this Court did not hesitate to say
that judges reviewing administrative action should decide
all questions of law, including questions concerning the
meaning of regulations. As Justice Brandeis put it, “[t]he
inexorable safeguard which the due process clause assures
is . . . that there will be opportunity for a court to deter-
mine whether the applicable rules of law . . . were ob-
——————
3 See Knudsen & Wildermuth, Unearthing the Lost History of Semi-
nole Rock, 65 Emory L. J. 47, 55, 65, 68 (2015) (Lost History).
4 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
served.”4 Unsurprisingly, the government’s early,
longstanding, and consistent interpretation of a statute,
regulation, or other legal instrument could count as pow-
erful evidence of its original public meaning.5 But courts
respected executive interpretations only because and to
the extent “they embodied understandings made roughly
contemporaneously with . . . enactment and stably main-
tained and practiced since that time,” not “because they
were executive as such.”6
Writing for four Members of the Court, JUSTICE KAGAN
suggests that Auer’s very different approach to the inter-
pretation of agency regulations was foreshadowed as early
as this Court’s 1898 decision in United States v. Eaton.7
Ante, at 7. But this is mistaken. The question in that case
was whether Mr. Eaton’s appointment as temporary vice-
consul to Siam was consistent with State Department
regulations. After several pages of careful and indepen-
dent legal analysis, the Court held that the regulations did
authorize the appointment. That conclusion, the Court
explained, was “rendered necessary by a consideration of
——————
4 St.Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73 (1936)
(concurring opinion). See also FTC v. Gratz, 253 U.S. 421, 427 (1920);
ICC v. Union Pacific R. Co., 222 U.S. 541, 547 (1912); Belden v. Chase,
150 U.S. 674, 698 (1893); Decatur v. Paulding, 14 Pet. 497, 515 (1840);
accord, Woolhandler, Judicial Deference to Administrative Action—A
Revisionist History, 43 Admin. L. Rev. 197, 206–207 (1991).
5 Bamzai, The Origins of Judicial Deference to Executive Interpreta-
tion, 126 Yale L. J. 908, 930–947 (2017) (Origins).
6 Id., at 943, 962; cf. NLRB v. Noel Canning, 573 U.S. 513, 572–573
(2014) (Scalia, J., concurring in judgment) (an “open, widespread, and
unchallenged” governmental practice can “guide [courts’] interpreta-
tion” of an ambiguous text, but it cannot “alter” the meaning of that
text); Edward’s Lessee v. Darby, 12 Wheat. 206, 210 (1827) (“In the
construction of a doubtful and ambiguous law, the cotemporaneous
construction of those who were called upon to act under the law, and
were appointed to carry its provisions into effect, is entitled to very
great respect”).
7 169 U.S. 331.
Cite as: 588 U. S. ____ (2019) 5
GORSUCH, J., concurring in judgment
the text.”8 Only after reaching this conclusion did the
Court observe that the State Department had previously
adopted the same construction, noting along the way that
the Department’s views were “entitled to the greatest
weight” and that the Court saw “no reason in this case to
doubt [their] correctness.”9 Eaton thus simply followed
the well-worn path of acknowledging that an agency’s
interpretation of a regulation can supply evidence of its
meaning.10 Nowhere did the Court even hint that it would
have deferred to the State Department’s views about the
meaning of the law if its own independent textual analysis
had not led it to the same conclusion.
All this is borne out by the Court’s later teachings in
Skidmore v. Swift & Co. in 1944.11 The question there
was whether the time overnight employees spent waiting
to respond to fire alarms could amount to compensable
overtime under the Fair Labor Standards Act. The lower
courts had held as a matter of law that it could not. In an
opinion by Justice Jackson, this Court reversed. The
Court first held, based on its own independent analysis,
that “no principle of law found either in the statute or in
Court decisions precludes waiting time from also being
working time.”12 Only then did the Court consider “what,
if any, deference courts should pay” to the views of the
Administrator of the Labor Department’s Wage and Hour
——————
8 Id., at 342.
9 Id., at 342–343.
10 Cf. Newman, How Courts Interpret Regulations, 35 Cal. L. Rev.
509, 521, and n. 78 (1947) (noting that Eaton suggested administrative
interpretations could be “ ‘persuasive’ but not binding”).
11 323 U.S. 134.
12 Id., at 136–137. Much of the legal analysis supporting this conclu-
sion was contained in the companion case, Armour & Co. v. Wantock,
323 U.S. 126 (1944), which made no mention of any administrative
interpretations. Id., at 129–134; see Skidmore, 323 U. S., at 136 (citing
the “reasons set forth in the Armour case decided herewith”).
6 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
Division.13 And on that question the Court reaffirmed the
traditional rule that an agency’s interpretation of the law
is “not controlling upon the courts” and is entitled only to
a weight proportional to “the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those
factors which give it power to persuade.”14 At the time,
the influential administrative law scholar Kenneth Culp
Davis considered this “[a]n entirely reliable statement” of
the law.15
B
In truth, the seeds of the Auer doctrine were first planted
only in 1945, in Bowles v. Seminole Rock & Sand Co.16
That case involved regulations issued by the Office of
Price Administration (OPA), which Congress had tasked
with stabilizing the national economy during the Second
World War through the use of emergency price controls. It
was in that context that the Court declared—for the first
time and without citing any authority—that “if the mean-
ing of [the regulation were] in doubt,” the agency’s inter-
pretation would merit “controlling weight unless it is
plainly erroneous or inconsistent with the regulation.”17
Yet even then it was far from clear how much weight
——————
13 Id.,
at 139.
14 Id.,
at 140; see also id., at 139 (the agency’s views “are not, of
course, conclusive, even in the cases with which they directly deal” and
do not “bin[d] a district court’s processes, as an authoritative pro-
nouncement of a higher court might do”).
15 Davis, Administrative Rules—Interpretative, Legislative, and Ret-
roactive, 57 Yale L. J. 919, 936–939, and n. 86 (1948); see also K. Davis,
Administrative Law §249, p. 901 (1951) (“[S]ubstitution of judicial
judgment on the content of interpretative rules is always permissible,
even though the reviewing court may give ‘weight’ or ‘great weight’ to
the rule. The best guide may be the Court’s formula in Skidmore . . . ”).
16 325 U.S. 410.
17 Id., at 414.
Cite as: 588 U. S. ____ (2019) 7
GORSUCH, J., concurring in judgment
the Court really placed on the agency’s interpretation. As
it had in Eaton, the Court in Seminole Rock began with an
extended discussion of “the plain words of the regulation,”
which led it to conclude that the text “clearly” supported
the government’s position.18 Only after reaching that
conclusion based on its own independent analysis did the
Court proceed to add that “[a]ny doubts . . . are removed
by reference to the administrative construction.”19
So confused was all this that readers at the time didn’t
perceive Seminole Rock’s dictum as changing anything.
Professor Davis observed that the Court’s discussion about
giving “controlling weight” to the agency’s interpretation
was an unexplained aside that made no difference to the
case’s outcome.20 The dictum, too, was readily explained
as reflecting the unusual factual context in which the case
arose, involving an emergency government program created
to deal with “unique circumstances of war and economic
depression.”21 And the Court decided Seminole Rock the
same Term it issued Skidmore, where it reaffirmed the
traditional rule that an agency’s views about the law may
persuade a court but can never control its judgment. In
fact, the Court in Seminole Rock was careful to note that
the OPA interpretation before it bore many of the charac-
teristics Skidmore would have recognized as increasing its
persuasive force: It had been announced concurrently with
the regulation, disseminated widely to the regulated com-
munity, and adhered to consistently by the agency.22
——————
18 Id.,at 414–417.
19 Id.,at 417.
20 See Davis, Scope of Review of Federal Administrative Action, 50
Colum. L. Rev. 559, 597 (1950).
21 Lost History 60; see also Anthony, The Supreme Court and the
APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 12
(1996).
22 325 U. S., at 417–418; see Pojanowski, Revisiting Seminole Rock,
16 Geo. J. L. & Pub. Pol’y 87, 88 (2018) (“A closer look at Seminole Rock
suggests an unremarkable application of the less-deferential standard
8 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
No wonder, then, that for many years after the decision,
courts “connected Seminole Rock more closely with the
deference framework . . . under Skidmore” and generally
engaged in a Skidmore-type analysis, accepting the agency’s
interpretation “only after independently examining the
regulation and concluding that the agency interpretation
was sound.”23 If Seminole Rock’s “controlling weight”
dictum was afforded any force, it was usually only in the
price control context; even then it was ordinarily extended
only to “official” agency interpretations that were pub-
lished contemporaneously with the regulation and widely
distributed.24 The Fourth Circuit exemplified the early
understanding of Seminole Rock when it observed—citing
both Seminole Rock and Skidmore—that “under settled
principles” an official agency interpretation in an opinion
letter was entitled only to “respectful consideration.”25
The letter, the court stressed, did not “have the effect of
law,” and “[i]t would be absurd to hold that the courts
must subordinate their judgment as to the meaning of a
. . . regulation to the mere unsupported opinion of an
associate counsel in an administrative department.”26
C
This Court did not cite Seminole Rock’s “controlling
weight” dictum again until 1965, in Udall v. Tallman.27
And though Tallman “did very little to advance the juris-
prudential understanding of Seminole Rock,” it certainly
helped fuel the expansion of so-called “Seminole Rock
——————
of review of Skidmore”).
23 Lost History 94–97; see Pojanowski, supra, at 92–96.
24 Lost History 65–68.
25 Southern Goods Corp. v. Bowles, 158 F.2d 587, 590 (1946).
26 Ibid.
27 380 U.S. 1, 4, 17–18 (accepting a regulatory interpretation by the
Secretary of the Interior that was consistent, widely disseminated, and
heavily relied upon, while not suggesting any disagreement with the
Secretary’s interpretation).
Cite as: 588 U. S. ____ (2019) 9
GORSUCH, J., concurring in judgment
deference.”28 From the 1960s on, this Court and lower
courts began to cite the Seminole Rock dictum with
increasing frequency and in a wider variety of circumstan-
ces, but still without much explanation. They also
increasingly divorced Seminole Rock from Skidmore.29
Auer represents the apotheosis of this line of cases. In
the name of what some now call the Auer doctrine, courts
have in recent years “mechanically applied and reflexively
treated” Seminole Rock’s dictum “as a constraint upon the
careful inquiry that one might ordinarily expect of courts
engaged in textual analysis.”30 Under Auer, judges are
forced to subordinate their own views about what the law
means to those of a political actor, one who may even be a
party to the litigation before the court. After all, if the
court agrees that the agency’s reading is the best one,
Auer does no real work; the doctrine matters only when a
court would conclude that the agency’s interpretation is
not the best or fairest reading of the regulation.
To be sure, JUSTICE KAGAN paints a very different
picture of Auer, asking us to imagine it riding to the res-
cue only in cases where the scales of justice are evenly
balanced between two equally persuasive readings. But
that’s a fantasy: “If nature knows of such equipoise in
legal arguments, the courts at least do not.”31 In the real
world the judge uses his traditional interpretive toolkit,
full of canons and tiebreaking rules, to reach a decision
about the best and fairest reading of the law. Of course,
there are close cases and reasonable judges will sometimes
disagree. But every day, in courts throughout this coun-
try, judges manage with these traditional tools to reach
conclusions about the meaning of statutes, rules of proce-
——————
28 Lost History 80.
29 See generally id., at 68–92, 98.
30 Id., at 53.
31 Scalia, Judicial Deference to Administrative Interpretations of
Law, 1989 Duke L. J. 511, 520.
10 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
dure, contracts, and the Constitution. Yet when it comes
to interpreting federal regulations, Auer displaces this
process and requires judges instead to treat the agency’s
interpretation as controlling even when it is “not . . . the
best one.”32
If that were not troubling enough, Auer has also become
“a doctrine of uncertain scope and application.”33 This
Court has never offered meaningful guidance on how to
decide whether the agency’s reading is “reasonable”
enough to demand judicial deference—and lower courts
have drawn that line in wildly different places.34 Deepen-
ing the confusion, this Court and lower courts have, over
time, tried to soften Auer’s rigidity by declaring that it
“might” not apply in some ill-defined circumstances, such
as when the agency’s interpretation “conflicts with a prior
interpretation” or reflects a “convenient litigating position”
or a “post hoc rationalization” for past agency action.35 All
this has resulted in “widespread confusion” about when
and how to apply Auer deference.36
In light of Auer’s many problems, it should come as no
surprise that several Members of this Court,37 along with
——————
32 Decker v. Northwest Environmental Defense Center, 568 U.S. 597,
613 (2013); see Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702
(1991) (the agency’s interpretation “need not be the best or most natu-
ral one by grammatical or other standards”).
33 Hickman & Thomson, The Chevronization of Auer, 103 Minn.
L. Rev. Headnotes 103, 105 (2019).
34 See Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev.
2118, 2134–2144 (2016).
35 Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155
(2012) (alterations and internal quotation marks omitted).
36 Leske, Splits in the Rock: The Conflicting Interpretations of the
Seminole Rock Deference Doctrine by the U. S. Courts of Appeals, 66
Admin. L. Rev. 787, 832 (2014); see Hickman & Thomson, supra, at 111
(noting a “glut of recent cases in which members of the same court are
openly divided on the proper application of Auer”).
37 See Perez v. Mortgage Bankers Assn., 575 U.S. 92, ___–___ (2015)
(ALITO, J., concurring in part and concurring in judgment) (slip op., at
Cite as: 588 U. S. ____ (2019) 11
GORSUCH, J., concurring in judgment
a great many lower court judges38 and members of the
legal academy,39 have questioned Auer’s validity and
pleaded with this Court to reconsider it.
D
That’s where things stood when James Kisor asked the
Department of Veterans Affairs to reopen his disability
benefits claim. Mr. Kisor served as a United States Ma-
rine from 1962 through 1966 and saw combat in Vietnam.
——————
1–2); id., at ___–___ (Scalia, J., concurring in judgment) (slip op., at 1–
5); id., at ___–___ (THOMAS, J., concurring in judgment) (slip op., at 8–
23); Decker, 568 U. S., at 615–616 (ROBERTS, C. J., joined by ALITO, J.,
concurring); id., at 616–621 (Scalia, J., concurring in part and dissent-
ing in part); Talk America, Inc. v. Michigan Bell Telephone Co., 564
U.S. 50, 67–69 (2011) (Scalia, J., concurring); see also Kavanaugh,
Keynote Address: Justice Scalia and Deference 19:06 (June 2, 2016),
http://vimeo.com/169758593 (predicting “that Auer will someday be
overruled and that Justice Scalia’s dissent in Decker will be the law of
the land”).
38 See, e.g., Forrest Gen. Hospital v. Azar, ___ F. 3d ___, ___, 2019 WL
2417409, *7 (CA5 2019); San Diego Gas & Elec. Co. v. FERC, 913 F.3d
127, 145, n. 4 (CADC 2019) (Randolph, J., dissenting); United States v.
Havis, 907 F.3d 439, 450–452 (CA6 2018) (Thapar, J., concurring),
vacated, 921 F.3d 628, on reh’g en banc, ___ F. 3d ___ (CA6 2019);
Marsh v. J. Alexander’s LLC, 905 F.3d 610, 652–653 (CA9 2018)
(Ikuta, J., dissenting); Egan v. Delaware River Port Auth., 851 F.3d
263, 279 (CA3 2017) (Jordan, J., concurring in judgment); Perez v.
Loren Cook Co., 803 F.3d 935, 938, n. 2 (CA8 2015) (en banc); Johnson
v. McDonald, 762 F.3d 1362, 1366–1368 (CA Fed. 2014) (O’Malley, J.,
concurring); Exelon Generation Co. v. Local 15, Int’l Brotherhood of
Elec. Workers, AFL–CIO, 676 F.3d 566, 576, n. 5 (CA7 2012).
39 See, e.g., Hickman & Thomson, supra, at 111–113; Adler, Auer
Evasions, 16 Geo. J. L. & Pub. Pol’y 1, 26 (2018); Pojanowski, 16 Geo.
J. L. & Pub. Pol’y, at 99; Knudsen & Wildermuth, Lessons From the
Lost History of Seminole Rock, 22 Geo. Mason L. Rev. 647, 667 (2015);
Leske, supra, at 789–793; Molot, The Judicial Perspective in the
Administrative State: Reconciling Modern Doctrines of Deference with
the Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 108–110 (2000);
Anthony, 10 Admin. L. J., at 4–12; Manning, Constitutional Structure
and Judicial Deference to Agency Interpretations of Agency Rules, 96
Colum. L. Rev. 612, 696 (1996).
12 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
In the early 1980s, a VA counselor observed that Mr. Kisor
was battling depression and suicidal thoughts and sug-
gested he might be suffering from post-traumatic stress
disorder. In light of this, Mr. Kisor filed a claim for disa-
bility benefits in 1982. But, in the end, the VA denied the
claim.
In 2006, Mr. Kisor sought to reopen the matter. In
connection with that request, he presented new evidence,
including a psychiatrist’s report diagnosing him with
PTSD and additional records documenting his service in
Vietnam. The VA reopened Mr. Kisor’s claim and granted
him disability benefits effective June 5, 2006, the date he
had submitted his new request. Mr. Kisor argued that a
VA regulation entitled him to an earlier effective date for
disability benefits, one tracing back to his original submis-
sion in 1982. But the Board of Veterans Appeals concluded
that the applicable regulation didn’t authorize that relief.
Mr. Kisor appealed the Board’s ruling all the way to the
Federal Circuit, arguing that the Board had misinterpreted
the relevant regulation. The Federal Circuit affirmed.
Relying on the Auer doctrine, the court held that it had no
choice but to treat the Board’s interpretation as “ ‘control-
ling’ ” unless that interpretation was “ ‘plainly erroneous or
inconsistent with the regulatio[n].’ ”40 Without even trying
to determine who had the better reading of the regulation,
the Board or Mr. Kisor, the court declared that “[t]he
Board’s interpretation does not strike us as either plainly
erroneous or inconsistent with the VA’s regulatory frame-
work.”41 Case closed.
Mr. Kisor sought and was denied rehearing en banc.
Three judges dissented and joined those who have ques-
tioned “the logic behind continued adherence to the [Auer]
doctrine”; they argued that, without Auer deference, Mr.
——————
40 Kisor v. Shulkin, 869 F.3d 1360, 1367 (2017).
41 Id., at 1368.
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GORSUCH, J., concurring in judgment
Kisor’s reading of the regulation would likely prevail.42
Mr. Kisor then asked us to grant certiorari to reconsider
Auer. Thinking it past time to do so, we granted the
petition.43
II. The Administrative Procedure Act
When this Court speaks about the rules governing
judicial review of federal agency action, we are not (or
shouldn’t be) writing on a blank slate or exercising some
common-law-making power. We are supposed to be apply-
ing the Administrative Procedure Act. The APA is a
“seminal” statute that Congress wrote to define the rela-
tionship between courts and agencies.44 Some have even
described it as a kind of constitution for our “administra-
tive state.” Yet, remarkably, until today this Court has
never made any serious effort to square the Auer doctrine
with the APA. Even now, only four Justices make the
attempt. And for at least two reasons, their arguments
are wholly unpersuasive.
A
The first problem lies in §706. That provision instructs
reviewing courts to “decide all relevant questions of law”
and “set aside agency action . . . found to be . . . not in
accordance with law.”45 Determining the meaning of a
statute or regulation, of course, presents a classic legal
question. But in case these directives were not clear
enough, the APA further directs courts to “determine the
meaning” of any relevant “agency action,” including any
rule issued by the agency.46 The APA thus requires a
——————
42 Kisor v. Shulkin, 880 F.3d 1378, 1379 (CA Fed. 2018) (opinion of
O’Malley, J.).
43 586 U. S. ___ (2018).
44 Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).
45 5 U.S. C. §706.
46 Ibid.; see §551(13) (defining “agency action”).
14 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
reviewing court to resolve for itself any dispute over the
proper interpretation of an agency regulation. A court
that, in deference to an agency, adopts something other
than the best reading of a regulation isn’t “decid[ing]” the
relevant “questio[n] of law” or “determin[ing] the mean-
ing” of the regulation. Instead, it’s allowing the agency to
dictate the answer to that question. In doing so, the court
is abdicating the duty Congress assigned to it in the
APA.47
JUSTICE KAGAN seeks to address the glaring incon-
sistency between our judge-made rule and the controlling
statute this way. On her account, the APA tells a review-
ing court to “determine the meaning” of regulations, but it
does not tell the court “how” to do that. Thus, we are told,
reading the regulation for itself and deferring to the
agency’s reading are just two equally valid ways for a
court to fulfill its statutory duty to “determine the meaning”
of the regulation. Ante, at 20–21.
But the APA isn’t as anemic as that. Its unqualified
command requires the court to determine legal ques-
tions—including questions about a regulation’s meaning—
by its own lights, not by those of political appointees or
bureaucrats who may even be self-interested litigants in
the case at hand. Nor can there be any doubt that, when
Congress wrote the APA, it knew perfectly well how to
require judicial deference to an agency when it wished—in
fact, Congress repeatedly specified deferential standards
for judicial review elsewhere in the statute.48 But when it
——————
47 The case before us doesn’t arise under the APA, but the statute
that governs here is plainly modeled on the APA and contains essen-
tially the same commands. It directs a reviewing court to “decide all
relevant questions of law” and to “set aside any regulation or any
interpretation thereof ” that is “not in accordance with law.” 38 U.S. C.
§7292(d)(1).
48 See, e.g., §706(2)(A) (arbitrary and capricious, abuse of discretion);
§706(2)(E) (substantial evidence); see also Universal Camera Corp. v.
Cite as: 588 U. S. ____ (2019) 15
GORSUCH, J., concurring in judgment
comes to the business of interpreting regulations, no such
command exists; instead, Congress told courts to “deter-
mine” those matters for themselves. Though one hardly
needs to be an academic to recognize the point, “commen-
tators in administrative law have ‘generally acknowl-
edged’ that Section 706 seems to require de novo review on
questions of law.”49
What the statutory language suggests, experience con-
firms. If Auer deference were really just another way for
courts to “determine the meaning” of regulations under
§706, you might expect that a final judicial “determina-
tion” would at least settle, as a matter of precedent, the
question of what the regulation “means.” Of course, even
after one court has spoken on a regulation’s meaning, that
——————
NLRB, 340 U.S. 474, 482, n. 14 (1951) (noting that as originally
proposed, the APA’s judicial review provision would have included an
explicit requirement for courts to accord “due weight” to “the experi-
ence, technical competence, specialized knowledge, and legislative
policy of the agency involved as well as the discretionary authority
conferred upon it” (internal quotation marks omitted)).
49 Duffy, Administrative Common Law in Judicial Review, 77 Texas
L. Rev. 113, 194–195 (1998); see Merrill, Capture Theory and the
Courts: 1967–1983, 72 Chi.-Kent L. Rev. 1039, 1085–1086 (1997)
(noting the “embarrassing” fact that “the APA appears to compel th[e]
conclusion” that “courts should decide all questions of law de novo”).
See also, e.g., Origins 985; Mashaw, Rethinking Judicial Review of
Administrative Action: A Nineteenth Century Perspective, 32 Cardozo
L. Rev. 2241, 2243 (2011); Garrett, Legislating Chevron, 101 Mich.
L. Rev. 2637, 2640 (2003); Molot, Reexamining Marbury in the Admin-
istrative State: A Structural and Institutional Defense of Judicial
Power over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1249
(2002); Anthony, 10 Admin. L. J. Am. U., at 9–10; Farina, Statutory
Interpretation and the Balance of Power in the Administrative State,
89 Colum. L. Rev. 452, 473, and n. 85 (1989); Starr, Sunstein, Willard,
& Morrison, Judicial Review of Administrative Action in a Conservative
Era, 39 Admin. L. Rev. 353, 368 (1987) (remarks of Prof. Sunstein);
Pierce & Shapiro, Political and Judicial Review of Agency Action, 59
Texas L. Rev. 1175, 1182 (1981); 4 K. Davis, Administrative Law
§30.01, pp. 190–191 (1958).
16 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
court or another might properly give weight to a new
agency interpretation as part of the court’s own decision-
making process. See supra, at 6. But in light of National
Cable & Telecommunications Assn. v. Brand X Internet
Services,50 courts have interpreted Auer as forbidding a
court from ever “determin[ing] the meaning” of a regula-
tion with the force that normally attaches to precedent,
because an agency is always free to adopt a different view
and insist on judicial deference to its new judgment.51
And if an agency can not only control the court’s initial
decision but also revoke that decision at any time, how can
anyone honestly say the court, rather than the agency,
ever really “determine[s]” what the regulation means?
To test the point further, consider a statute that tells a
court to “determin[e]” an appropriate sentence in a crimi-
nal case.52 If the judge said he was sending a defendant to
prison for longer than he believed appropriate only in
deference to the government’s “reasonable” sentencing
recommendation, would anyone really think that complied
with the law? Or take a statute that instructs a court to
“determine” whether a consent judgment proposed by the
government in a civil antitrust case “is in the public inter-
est.”53 If a court thought the proposed judgment harmful
to the public but decided to defer to the government’s
“reasonable” contrary view anyway, would anyone suggest
the court had complied with Congress’s instruction?
Nor does JUSTICE KAGAN’s reading of §706 offer any
logical stopping point. If courts can “determine the mean-
ing” of a regulation by deferring to any “reasonable” agency
reading, then why not by deferring to any agency reading?
If it were really true that the APA has nothing to say
——————
50 545 U.S. 967 (2005).
51 See,e.g., In re Lovin, 652 F.3d 1349, 1353–1354 (CA Fed. 2011);
Levy v. Sterling Holding Co., 544 F.3d 493, 502–503 (CA3 2008).
52 18 U.S. C. §3553(a).
53 15 U.S. C. §16(e)(1).
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GORSUCH, J., concurring in judgment
about how courts decide what regulations mean, then it
would follow that the APA tolerates a rule that “the agency
is always right.” And if you find yourself in a place as
absurd as that, you might want to consider whether you’ve
taken a wrong turn along the way.
B
The problems don’t end there. Auer is also incompatible
with the APA’s instructions in §553. That provision re-
quires agencies to follow notice-and-comment procedures
when issuing or amending legally binding regulations
(what the APA calls “substantive rules”), but not when
offering mere interpretations of those regulations.54 An
agency wishing to adopt or amend a binding regulation
thus must publish a proposal in the Federal Register, give
interested members of the public an opportunity to submit
written comments on the proposal, and consider those
comments before issuing the final regulation. Under the
APA, that regulation then carries the force of law unless
and until it is amended or repealed.55 By contrast, an
agency can announce an interpretation of an existing
substantive regulation without advance warning and in
pretty much whatever form it chooses.
Auer effectively nullifies the distinction Congress drew
here. Under Auer, courts must treat as “controlling” not
only an agency’s duly promulgated rules but also its mere
interpretations—even ones that appear only in a legal
brief, press release, or guidance document issued without
affording the public advance notice or a chance to com-
ment. For all practical purposes, “the new interpretation
might as well be a new regulation.”56 Auer thus oblit-
erates a distinction Congress thought vital and supplies
——————
54 See Perez, 575 U. S., at ___–___ (slip op., at 2–3).
55 United States v. Nixon, 418 U.S. 683, 695–696 (1974).
56 Perez, 575 U. S., at ___ (THOMAS, J., concurring in judgment) (slip
op., at 16).
18 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
agencies with a shortcut around the APA’s required proce-
dures for issuing and amending substantive rules that
bind the public with the full force and effect of law.57
Think of it this way. We’ve held that the Constitution’s
specification of a “single, finely wrought” procedure for the
enactment of statutes (bicameralism and presentment)
necessarily implies that Congress cannot amend an
enacted statute without following that procedure—say, by
allowing a single House to change what the law requires.58
By the same logic, Congress’s specification in the APA of
procedures for the creation of new substantive rules (like
notice and comment) necessarily implies that an agency
cannot amend a substantive rule without following those
procedures. To hold otherwise, as Auer demands, subverts
the APA’s design.
Certain amici contend this argument is “out of place” in
this particular case because the VA happened to issue the
interpretation challenged here in an adjudicative proceed-
ing.59 But the premise on which they proceed—that the
APA permits agencies to issue “controlling” amendments
to their regulations in adjudicative proceedings—is not
correct. Once an agency issues a substantive rule through
notice and comment, it can amend that rule only by follow-
ing the same notice-and-comment procedures.60 Whether
an agency issues its interpretation in a press release or
something it chooses to call an “adjudication,” all we have
is the agency’s opinion about what an existing rule means,
something that the APA tells us is not binding in a court of
law or on the American people.
——————
57 Ibid.; see id., at ___ (Scalia, J., concurring in judgment) (slip op., at
3) (Auer lets agencies “use [interpretive] rules not just to advise the
public, but also to bind them”).
58 See INS v. Chadha, 462 U.S. 919, 951, 954 (1983).
59 Brief for Administrative Law Scholars as Amici Curiae 9–10, n. 4.
60 See Perez, 575 U. S., at ___ (slip op., at 8); Marseilles Land & Water
Co. v. FERC, 345 F.3d 916, 920 (CADC 2003).
Cite as: 588 U. S. ____ (2019) 19
GORSUCH, J., concurring in judgment
If that won’t work, JUSTICE KAGAN tries an alternative
argument from nearly the opposite direction. She replies
that affording Auer deference to an agency’s interpretation
of its own rules never offends the APA because the agency’s
interpretation lacks “the force of law” associated with
substantive rules. Agency interpretations lack this force,
we are told, because a court always retains the power to
decide at least whether the interpretation is entitled to
deference. Ante, at 22–23. But this argument rests on an
implausibly narrow understanding of what it means for an
agency action to bear the force of law. Under JUSTICE
KAGAN’s logic, even a binding substantive rule would lack
the force of law because a court retains the power to decide
whether the rule is arbitrary and capricious and thus
invalid under the APA. But no one believes that. While
an agency interpretation, just like a substantive rule,
“must meet certain conditions before it gets deference,”
“once it does so [Auer makes it] every bit as binding as a
substantive rule.”61 To suggest that Auer does not make
an agency’s interpretive guidance “binding o[n] anyone,”
ante, at 23, is linguistic hocus-pocus.
C
If Auer cannot be squared with the text of the APA,
JUSTICE KAGAN suggests it at least conforms to a reason-
able “presumption about congressional intent.” Ante, at 7.
The theory seems to be that whenever Congress grants an
agency “rulemaking power,” it also implicitly gives the
agency “ ‘the power authoritatively to interpret’ ” whatever
rules the agency chooses to adopt. Ante, at 8. But against
the clear statutory commands Congress gave us in the
APA, what sense does it make to “presume” that Congress
really, secretly, wanted courts to treat agency interpreta-
——————
61 Perez, 575 U. S., at ___ (Scalia, J., concurring in judgment) (slip op.,
at 3).
20 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
tions as binding? Normally, this Court does not allow
hidden legislative intentions to “muddy” such plainly
expressed statutory directives.62
Even on its own terms, too, this argument proves pretty
muddy. It goes something like this: The drafters of the
APA did not intend to “ ‘significantly alter’ ” established
law governing judicial review of agency action as of 1946;
the Auer doctrine was part of that established law; there-
fore, the APA implicitly requires courts to afford agen-
cies Auer deference. Ante, at 21–22. But neither of this
syllogism’s essential premises stands on solid ground.
Take the major premise—that those who adopted the
APA intended to work no change in the established law of
judicial review of agency action. JUSTICE KAGAN is right,
of course, that Attorney General Clark claimed as much
shortly after the APA’s passage. Ante, at 21. But his
view, which reflected the interests of the executive branch,
was far from universally shared. Others, including many
members of Congress, thought the APA would clarify, if
not expand, the scope of judicial review. For example,
Senator McCarran, the Chairman of the Judiciary Com-
mittee, wrote that it would be “hard . . . for anyone to
argue that this Act did anything other than cut down the
‘cult of discretion’ so far as federal law is concerned.”63
And both the House and Senate reports on the APA said it
was intended to “provid[e] that questions of law are for
courts rather than agencies to decide in the last analysis.”64
Just five years after the APA’s passage, this Court
——————
62 Milner v. Department of Navy, 562 U.S. 562, 572 (2011).
63 McCarran, Improving “Administrative Justice”: Hearings and Evi-
dence; Scope of Judicial Review, 32 A. B. A. J. 827, 893 (1946).
64 H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946); accord, S. Rep.
No. 752, 79th Cong., 1st Sess., 28 (1945); 92 Cong. Rec. 5654 (1946)
(statement of Rep. Walter). See also Shepherd, Fierce Compromise:
The Administrative Procedure Act Emerges from New Deal Politics, 90
Nw. U. L. Rev. 1557, 1662–1666 (1996).
Cite as: 588 U. S. ____ (2019) 21
GORSUCH, J., concurring in judgment
seemed to side with those who thought the APA was in-
tended to do more than just summarize existing law. In
an opinion by Justice Frankfurter, the Court opined that
the APA required courts to assume “more responsibility”
for reviewing agency decisions “than some courts ha[d]
shown in the past.”65 One early commentator likewise
observed that the APA seemed designed to eliminate all
doubt that questions of law “shall be decided by the re-
viewing Court for itself, and in the exercise of its own
independent judgment”; “[m]ore explicit words to impose
this mandate,” he thought, “could hardly be found.”66
JUSTICE KAGAN’s syllogism runs into even more trouble
with its minor premise—that the Auer doctrine was a well-
established part of the common law background when
Congress enacted the APA in 1946. As we’ve seen, this
Court planted the seeds of Auer deference for the first time
in dictum in Seminole Rock, just a year before Congress
passed the APA. See Part I–B, supra. And that dictum
did not somehow immediately become an entrenched part
of the common law: For years following Seminole Rock,
courts and “commentators largely ignored” it,67 and those
who took notice weren’t sure what to make of it. Professor
Davis, for example, doubted that the dictum could be
“taken at face value” given that it seemed “irreconcilable”
with the Court’s approach in other cases.68 In truth, when
Congress passed the APA the law of judicial review of
agency action was in a confused state. During the con-
——————
65 Universal Camera, 340 U. S., at 490 (emphasis added).
66 Dickinson, Administrative Procedure Act: Scope and Grounds of
Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947). See also
Origins 990–991 (critiquing the Attorney General’s characterization of
the APA as “inherently question begging” and unsupported by any
analysis).
67 Adler, 16 Geo. J. L. & Pub. Pol’y, at 7; see Lost History 63; Pojan-
owski, 16 Geo. J. L. & Pub. Pol’y, at 95–96.
68 Davis, 50 Colum. L. Rev., at 597–598; see also Davis, 57 Yale L. J.,
at 936, n. 72; Newman, 35 Cal. L. Rev., at 521–522.
22 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
gressional hearings on the bill, one witness’s suggestion
that Congress should leave the scope of judicial review “as
it now is” drew this fair reply from Representative Walter,
chairman of the House Subcommittee on Administrative
Law and author of the House Report on the APA: “You say
‘as it now is.’ Frankly, I do not know what it now is . . . .
[T]he Supreme Court apparently changes its mind daily.”69
III. The Constitution
Not only is Auer incompatible with the APA; it also sits
uneasily with the Constitution. Article III, §1 provides
that the “judicial Power of the United States” is vested
exclusively in this Court and the lower federal courts. A
core component of that judicial power is “ ‘the duty of
interpreting [the laws] and applying them in cases properly
brought before the courts.’ ”70 As Chief Justice Marshall
put it, “[i]t is emphatically the province and duty of the
judicial department to say what the law is.”71 And never,
this Court has warned, should the “judicial power . . . be
shared with [the] Executive Branch.”72 Yet that seems to
be exactly what Auer requires.
A
Our Nation’s founders were painfully aware of the dan-
gers of executive and legislative intrusion on judicial
decision-making. One of the abuses of royal power that
led to the American Revolution was King George’s attempt
——————
69 Hearings on H. R. 184 et al. before the House Committee on the
Judiciary, 79th Cong., 1st Sess., 38 (1945); see Origins 988–989.
70 Patchak v. Zinke, 583 U.S. ___, ___ (2018) (plurality opinion) (slip
op., at 5) (quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).
71 Marbury v. Madison, 1 Cranch 137, 177 (1803); see also Wayman v.
Southard, 10 Wheat. 1, 46 (1825) (“[T]he legislature makes, the execu-
tive executes, and the judiciary construes the law”); The Federalist No.
78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton).
72 Miller v. Johnson, 515 U.S. 900, 922 (1995).
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GORSUCH, J., concurring in judgment
to gain influence over colonial judges.73 Colonial legisla-
tures, too, had interfered with the courts’ independence “at
the behest of private interests and factions.”74 These
experiences had taught the founders that “ ‘there is no
liberty if the power of judgment be not separated from the
legislative and executive powers.’ ”75 They knew that
when political actors are left free not only to adopt and
enforce written laws, but also to control the interpretation
of those laws, the legal rights of “litigants with unpopular
or minority causes or . . . who belong to despised or sus-
pect classes” count for little.76 Maybe the powerful, well-
heeled, popular, and connected can wheedle favorable
outcomes from a system like that—but what about every-
one else? They are left always a little unsure what the law
is, at the mercy of political actors and the shifting winds of
popular opinion, and without the chance for a fair hearing
before a neutral judge. The rule of law begins to bleed into
the rule of men.
Experiencing all this in their own time, the founders
——————
73 See Declaration of Independence ¶11.
74 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 220–221 (1995).
75 The Federalist No. 78, at 466.
76 Palmore v. United States, 411 U.S. 389, 412 (1973) (Douglas, J.,
dissenting); see Oil States Energy Services, LLC v. Greene’s Energy
Group, LLC, 584 U.S. ___, ___ (2018) (GORSUCH, J., dissenting) (slip
op., at 3) (“[W]hen an independent judiciary gives ground to bureau-
crats in the adjudication of cases, the losers will often prove the unpop-
ular and vulnerable”); United States v. Hatter, 532 U.S. 557, 568–569
(2001) (quoting John Marshall’s admonition that a judge who may be
called on to decide a dispute “ ‘between the most powerful individual in
the community, and the poorest and most unpopular’ ” must be “ ‘per-
fectly and completely independent, with nothing to influence or control
him but God and his conscience’ ” (alterations omitted)); Jackson, The
Meaning of Statutes: What Congress Says or What the Court Says, 34
A. B. A. J. 535, 536 (1948) (“[T]he interpretation of [the laws’] fair
meaning . . . should be made by judges as independent of politics as
humanly possible and not serving the interests of the class for whom, or
a majority by whom, legislation is enacted”).
24 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
sought to ensure that those who came after them would
not. Believing that “[n]o maxim was better established”
than “that the power of making ought to be kept distinct
from that of expounding, the laws,”77 they designed a
judiciary that would be able to interpret the laws “free
from potential domination by other branches of govern-
ment.”78 To that end, they resisted proposals that would
have subjected judicial decisions to review by political
actors.79 And they rejected the British tradition of using
the upper house of the legislature as a court of last resort,
out of fear that a body with “even a partial agency in
passing bad laws” would operate under the “same spirit”
in “interpreting them.”80 Instead, they gave federal judges
life tenure, subject only to removal by impeachment; and
they guaranteed that the other branches could not reduce
judges’ compensation so long as they remained in office.
The founders afforded these extraordinary powers and
protections not for the comfort of judges, but so that an
independent judiciary could better guard the people from
the arbitrary use of governmental power. And sitting atop
the judicial branch, this Court has always carried a special
duty to “jealously guar[d]” the Constitution’s promise of
judicial independence.81 So we have long resisted any
effort by the other branches to “ ‘usurp a court’s power to
interpret and apply the law to the circumstances before
it.’ ”82 The judicial power to interpret the law, this Court
has held, “can no more be shared with another branch
——————
77 2 Records of the Federal Convention of 1787, p. 75 (M. Farrand ed.
1911); see also Manning, 96 Colum. L. Rev., at 640–648.
78 United States v. Will, 449 U.S. 200, 218 (1980).
79 See The Federalist No. 81, at 482 (A. Hamilton).
80 Id., at 483.
81 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 60 (1982) (plurality opinion).
82 Bank Markazi v. Peterson, 578 U.S. ___, ___ (2016) (slip op., at 12)
(alterations omitted).
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GORSUCH, J., concurring in judgment
than the Chief Executive, for example, can share with the
Judiciary the veto power, or the Congress share with the
Judiciary the power to override a Presidential veto.”83
Auer represents no trivial threat to these foundational
principles. Under the APA, substantive rules issued by
federal agencies through notice-and-comment procedures
bear “the ‘force and effect of law’ ”84 and are part of the
body of federal law, binding on private individuals, that
the Constitution charges federal judges with interpreting.
Yet Auer tells the judge that he must interpret these
binding laws to mean not what he thinks they mean, but
what an executive agency says they mean. Unlike Article
III judges, executive officials are not, nor are they sup-
posed to be, “wholly impartial.”85 They have their own
interests, their own constituencies, and their own policy
goals—and when interpreting a regulation, they may
choose to “press the case for the side [they] represen[t]”
instead of adopting the fairest and best reading.86 Auer
thus means that, far from being “kept distinct,” the powers
of making, enforcing, and interpreting laws are united in
the same hands—and in the process a cornerstone of the
rule of law is compromised.
——————
83 Stern v. Marshall, 564 U.S. 462, 483 (2011) (internal quotation
marks omitted).
84 Perez, 575 U. S., at ___ (slip op., at 2); see Chrysler Corp. v. Brown,
441 U.S. 281, 295–296 (1979). To be sure, our precedent allowing
executive agencies to issue legally binding regulations to govern private
conduct may raise constitutional questions of its own. See, e.g., De-
partment of Transportation v. Association of American Railroads, 575
U.S. 43, ___–___ (2015) (THOMAS, J., concurring in judgment) (slip op.,
at 4–11).
85 Cox, Judge Learned Hand and the Interpretation of Statutes, 60
Harv. L. Rev. 370, 390 (1947).
86 Id., at 390–391, and n. 58; see also Kavanaugh, 129 Harv. L. Rev.,
at 2151 (in pursuing their policy goals, “[e]xecutive branch agen-
cies often think they can take a particular action unless it is clearly
forbidden”).
26 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
Consider an analogy. The Court has long held that
Congress cannot “ ‘indirectly control the action of the
courts, by requiring of them a construction of the law
according to its own views.’ ”87 If Congress disagrees with
how courts are interpreting an existing statute, it is free to
amend the statute to establish a different rule going for-
ward. What it cannot do is issue “a mandate . . . to compel
the courts to construe and apply [existing law], not accord-
ing to the judicial, but according to the legislative judg-
ment.”88 As early as 1804, when a lawyer argued before
this Court that an Act of the North Carolina legislature
could not control the Court’s construction of an earlier
North Carolina statute because “[t]o declare what the law
is, or has been, is a judicial power,” not a legislative power,
the Court stopped him, deeming the point too plain for
argument.89
But if the legislature can’t control a judge’s interpreta-
tion of an existing statute, how can an executive agency
control a judge’s interpretation of an existing and equally
binding regulation? Auer allows an agency to do exactly
what this Court has always said a legislature cannot do:
“compel the courts to construe and apply” a law on the
books, “not according to the judicial . . . judgment,” but
according to the judgment of another branch.90 When 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 Con-
stitution guarantees them. And we mislead those whom
we serve by placing a judicial imprimatur on what is, in
——————
87 Plaut, 514 U. S., at 225 (quoting T. Cooley, Constitutional Limita-
tions 95 (1868)).
88 Id., at 95; see also Bank Markazi, 578 U. S., at ___, n. 17 (slip op.,
at 12, n. 17).
89 Ogden v. Blackledge, 2 Cranch 272, 277.
90 Cooley, supra, at 95.
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GORSUCH, J., concurring in judgment
fact, no more than an exercise of raw political executive
power.91
B
What do our colleagues have to say about these con-
cerns? A majority has nothing to offer, and JUSTICE
KAGAN dismisses them out of hand. In fact, she barely
mentions the Constitution, other than to assure us that
Auer does not allow agencies to “usur[p] the interpretive
role of courts” because “courts retain a firm grip on the
interpretive function” through their ability to decide
whether Auer deference applies. Ante, at 25. But that is
no assurance at all. The judicial power has always been
understood to provide the people with a neutral arbiter
who bears the responsibility and duty to “expound
and interpret” the governing law, not just the power to
say whether someone else’s interpretation, let alone the
interpretation of a self-interested political actor, is
“reasonable.”92
To be sure, it’s conceivable that Congress might seek to
limit the ability of judges to remedy an adverse agency
action. It might, for example, provide that a court shall
have power to set aside agency action pursuant to a regu-
lation only if the action was based on an unreasonable
interpretation of the regulation. But even assuming the
constitutionality of a hypothetical statute like that, Auer is
different. It does not limit the scope of the judicial power;
instead, it seeks to coopt the judicial power by requiring
an Article III judge to decide a case before him according
——————
91 Cf. Cary v. Curtis, 3 How. 236, 253, 257 (1845) (Story, J., dissent-
ing) (if the “right to interpret the laws” is taken away from courts and
“confided to an executive functionary,” then “the judicial power, de-
signed by the Constitution to be the final and appellate jurisdiction to
interpret our laws, is superseded in its most vital and important
functions”).
92 Marbury, 1 Cranch, at 177.
28 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
to principles that he believes do not accurately reflect the
law. Under Auer, a judge is required to lay aside his
independent judgment and declare affirmatively that a
regulation means what the agency says it means—and,
thus, that the law is what the agency says it is. Then the
judge is compelled to exercise his judicial authority to
adjust private rights and obligations based on the agency’s
(mis)understanding of the law. If Auer were a statute, it
would not be an exercise of Congress’s “power (within
limits) to tell the courts what classes of cases they may
decide,” or what relief they may supply, but a forbidden
attempt “to prescribe or superintend how they decide
those cases.”93 And in the absence of any statute like that,
this Court surely should not so freely give away to the
executive branch its assigned responsibility to interpret
the laws. “Abdication of responsibility is not part of the
constitutional design.”94
In the end, JUSTICE KAGAN’s only real reply is this:
However misguided it may be to hand over our interpre-
tive powers to executive agencies, at least there isn’t a
mountain of empirical evidence showing that agencies
have used this power to deliberately write “vague and
open-ended” regulations to maximize their interpretive
leeway. Ante, at 24. But even this misses the point.
Whether or not regulations are “ ‘designed’ ” to be vague,
ibid., many can be read in different ways, especially when
new and unanticipated applications arise; cases like that
come before the courts all the time. Without Auer’s shadow
hanging over them, parties would receive a fair hearing
before an impartial judge. The agency’s interpretation
would sometimes be rejected; and that, in turn, might lead
it to solicit public comment on possible amendments to the
——————
93 Arlington v. FCC, 569 U.S. 290, 297 (2013) (emphasis added).
94 Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J.,
concurring).
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GORSUCH, J., concurring in judgment
regulation, which would provide an opportunity for public
input that might produce better policy. But with Auer,
there is no fair hearing and no need for the agency to
amend the regulation through notice and comment.
Whether purposeful or not, the agency’s failure to write a
clear regulation winds up increasing its power, allowing it
to both write and interpret rules that bear the force of
law—in the process uniting powers the Constitution delib-
erately separated and denying the people their right to an
independent judicial determination of the law’s meaning.
IV. Policy Arguments
Lacking support elsewhere, JUSTICE KAGAN is forced to
resort to policy arguments to defend Auer. But even the
most sensible policy argument would not empower us to
ignore the plain language of the APA or the demands of
the Constitution. And as we’ve seen, those documents
reflect a very different “policy” judgment by the people
and their representatives. Besides, the policy argu-
ments offered today are not just unpersuasive, they are
troubling.
Take the first and boldest offering. JUSTICE KAGAN
suggests that determining the meaning of a regulation is
largely a matter of figuring out what the “person who
wrote it . . . intended.” Ante, at 8. In this way, we’re told,
a legally binding regulation isn’t all that different from “a
memo or an e-mail”—if you “[w]ant to know what [it]
means,” you’d better “[a]sk its author.” Ante, at 8–9. But
the federal government’s substantive rules are not like
memos or e-mails; they are binding edicts that carry the
force of law for all citizens. And if the rule of law means
anything, it means that we are governed by the public
meaning of the words found in statutes and regulations,
not by their authors’ private intentions. This is a vital
part of what it means to have “a government of laws, and
30 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
not of men.”95 When judges interpret a regulation, what
we are trying to get at, as Justice Holmes explained long
ago, is not the “particular intent” of those who wrote it,
but “what [its] words would mean [to] a normal speaker of
English . . . in the circumstances in which they were
used.”96 If the best reading of the regulation turns out to
be something other than what the agency claims to have
intended, the agency is free to rewrite the regulation; but
its secret intentions are not the law.
Nor does JUSTICE KAGAN’s account of the interpretive
process even wind up supporting Auer. If a court’s goal in
interpreting a regulation really were to determine what its
author “intended,” Auer would be an almost complete
mismatch with the goal. Agency personnel change over
time, and an agency’s policy priorities may shift dramati-
cally from one presidential administration to another. Yet
Auer tells courts that they must defer to the agency’s
current view of what the regulation ought to mean, which
may or may not correspond to the views of those who
actually wrote it. If interpreting a regulation really were
just like reading an e-mail, Auer would be like seeking
guidance about the e-mail’s meaning, years or decades
later, from the latest user of the computer from which the
e-mail was sent. We’ve repeatedly rejected that approach
in the context of statutory interpretation. While Members
of this Court sometimes disagree about the usefulness of
pre-enactment legislative history, we all agree that legisla-
tors’ statements about the meaning of an already-enacted
statute are not “a legitimate tool of statutory interpreta-
——————
95 Marbury, 1 Cranch, at 163.
96 Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417,
417–418 (1899); see INS v. Cardoza-Fonseca, 480 U.S. 421, 452–453
(1987) (Scalia, J., concurring in judgment) (“Judges interpret laws
rather than reconstruct legislators’ intentions”); H. Hart & A. Sacks,
The Legal Process 1375 (1994) (“Unenacted intentions or wishes cannot
be given effect as law”).
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GORSUCH, J., concurring in judgment
tion,’ ” much less a controlling one.97 So why on earth
would we give “controlling weight” to an agency’s state-
ments about the meaning of an already-promulgated
regulation?
Proceeding farther down this doubtful path, JUSTICE
KAGAN asserts that resolving ambiguities in a regulation
“sounds more in policy than in law” and is thus a task
more suited to executive officials than judges. Ante, at 9.
But this claim, too, contradicts a basic premise of our legal
order: that we are governed not by the shifting whims of
politicians and bureaucrats, but by written laws whose
meaning is fixed and ascertainable—if not by all members
of the public, then at least by lawyers who can advise
them and judges who must apply the law to individual
cases guided by the neutral principles found in our tradi-
tional tools of interpretation. The text of the regulation is
treated as the law, and the agency’s policy judgment has
the force of law only insofar as it is embodied in the regu-
latory text. If “new issues demanding new policy calls”
arise that aren’t addressed in existing regulations, ante, at
10, the solution is for the agency to promulgate new regu-
lations using the notice-and-comment procedures set forth
in the APA. But an agency has no warrant to compel
judges to change the law to conform with the agency’s
current policy preferences.
To be sure, during the period of Auer’s ascendancy some
suggested that the meaning of written law is always “radi-
cally indeterminate” and that judges expounding it are
“for the most part, guided by policy—not text.”98 And in
an environment like that it was perhaps thought a small
step to conclude that, if legal disputes are going to be
——————
97 United States v. Woods, 571 U.S. 31, 48 (2013).
98 O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice
Antonin Scalia, 91 St. John’s L. Rev. 303, 304–305 (2017) (contesting
the radical indeterminacy of legal texts).
32 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
resolved on political grounds, then they ought to be re-
solved by real politicians in the executive branch rather
than ersatz politicians on the bench. But the proposed
cure proved worse than the disease. Arguments like these
surrendered the judgment embodied in our Constitution
and the APA that courts owe the people they serve their
independent legal judgment about the law’s meaning.
Besides, we’ve long since come to realize that the real cure
doesn’t lie in turning judges into rubber stamps for politi-
cians, but in redirecting the judge’s interpretive task back
to its roots, away from open-ended policy appeals and
speculation about legislative intentions and toward the
traditional tools of interpretation judges have employed
for centuries to elucidate the law’s original public mean-
ing. Today it is even said that we judges are, to one de-
gree or another, “all textualists now.”99
Pursuing a more modest tack, JUSTICE KAGAN next
suggests that Auer is justified by the respect due agencies’
“technical” expertise. Ante, at 10. But no one doubts that
courts should pay close attention to an expert agency’s
views on technical questions in its field. Just as a court
“would want to know what John Henry Wigmore said
about an issue of evidence law [or] what Arthur Corbin
thought about a matter of contract law,” so too should
courts carefully consider what the Food and Drug Admin-
istration thinks about how its prescription drug safety
regulations operate.100 The fact remains, however, that
even agency experts “can be wrong; even Homer nod-
ded.”101 Skidmore and the traditional approach it embod-
ied recognized both of these facts of life long ago, explain-
ing that, while courts should of course afford respectful
——————
99 Id.,at 313; see Siegel, Textualism and Contextualism in Adminis-
trative Law, 78 B. U. L. Rev. 1023, 1057 (1998).
100 Larkin & Slattery, 42 Harv. J. L. & Pub. Pol’y, at 647.
101 Ibid.
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GORSUCH, J., concurring in judgment
consideration to the expert agency’s views, they must
remain open to competing expert and other evidence sup-
plied in an adversarial setting. Respect for an agency’s
technical expertise demands no more.
JUSTICE KAGAN’s final policy argument is that Auer
promotes “consistency” and “uniformity” in the interpreta-
tion of regulations. Ante, at 10–11. If we let courts decide
what regulations mean, she warns, they might disagree,
and it might take some time for higher courts to resolve
those disagreements. But consistency and uniformity are
hardly grounds on which Auer’s advocates should wish to
fight. The judicial process is how we settle disputes about
the meaning of written law, and our judicial system is
more than capable of producing a single, uniform, and
stable interpretation that will last until the regulation is
amended or repealed. Meanwhile, under Auer courts often
disagree about whether deference is warranted, see supra,
at 10–11, and a regulation’s “meaning” can be transformed
with the stroke of a pen any time there is a new presiden-
tial administration. “Consistency,” “uniformity,” and
stability in the law are hardly among Auer’s crowning
achievements.
V. Stare Decisis
In the end, a majority declines to endorse JUSTICE
KAGAN’s arguments and insists only that, even if Auer is
not “right and well-reasoned,” we’re stuck with it because
of the respect due precedent. Ante, at 27.
But notice: While pretending to bow to stare decisis, the
majority goes about reshaping our precedent in new and
experimental ways. True, the majority admits, this Court
has in the past accorded Auer deference “ ‘reflexive[ly],’ ”
“without significant analysis of the underlying regulation”
or “careful attention to [its] nature and context,” and
encouraged lower courts to do the same. Ante, at 12–13.
But no more. From now on, the majority says, not only
34 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
must judges “exhaust all the ‘traditional tools’ of construc-
tion” to decide whether the agency’s interpretation is
“reasonable,” they must also make “an independent in-
quiry into whether the character and context of the agency
interpretation” justifies deference. Ante, at 13–15. The
majority candidly admits that it finds it impossible to
“reduce” this new inquiry “to any exhaustive test,” so it
settles for laying out some “markers.” Ante, at 15. What
are the markers? We are told that courts should often—
but not always—withhold deference from an interpreta-
tion offered by mid-level agency staff; often—but not
always—withhold deference from a nontechnical, “prosaic-
seeming” interpretation; often—but not always—withhold
deference from an interpretation advanced for the first
time in an amicus brief; and often—but not always—
withhold deference from an interpretation that conflicts
with an earlier one. See ante, at 15–18. The only certainty
in all this is that the majority isn’t really much moved by
stare decisis; everyone recognizes, to one degree or another,
that Auer cannot stand. And between our remaining
choices—continuing to make up new deference rules, or
returning to the text of the APA and the approach to
judicial review that prevailed for most of our history—the
answer should have been easy.
A
There are serious questions about whether stare decisis
should apply here at all. To be sure, Auer’s narrow hold-
ing about the meaning of the regulation at issue in that
case may be entitled to stare decisis effect. The same may
be true for the specific holdings in other cases where this
Court has applied Auer deference. But does stare decisis
extend beyond those discrete holdings and bind future
Members of this Court to apply Auer’s broader deference
framework?
It seems doubtful that stare decisis demands that much.
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GORSUCH, J., concurring in judgment
We are not dealing with a precedent that purported to
settle the meaning of a single statute or regulation or
resolve a particular case. The Auer doctrine claims to do
much more than that—to prescribe an interpretive meth-
odology governing every future dispute over the meaning
of every regulation. In other contexts, we do not regard
statements in our opinions about such generally applicable
interpretive methods, like the proper weight to afford
historical practice in constitutional cases or legislative
history in statutory cases, as binding future Justices with
the full force of horizontal stare decisis.102 Why, then,
should we regard as binding Auer’s statements about the
weight to afford agencies’ interpretations in regulatory
cases? To the extent Auer purports to dictate “the inter-
pretive inferences that future Justices must draw in con-
struing statutes and regulations that the Court has never
engaged,” it may well “exceed the limits of stare decisis.”103
Even if our past expressions of support for Auer defer-
ence bear some precedential force, they certainly are not
entitled (as the majority suggests, ante, at 26–27) to the
special, heightened form of stare decisis we reserve for
narrow statutory decisions. In contrast to precedents that
fix the meaning of particular statutes and generate reli-
ance interests in the process, the Auer doctrine is an ab-
stract default rule of interpretive methodology that settles
nothing of its own force. And this Court has recognized
——————
102 See Criddle & Staszewski, Against Methodological Stare Decisis,
102 Geo. L. J. 1573, 1577, and n. 12 (2014); C. Oldfather, Methodologi-
cal Stare Decisis and Constitutional Interpretation, in Precedent in the
United States Supreme Court 135, 135–136 (C. Peters ed. 2013).
103 Kozel, Statutory Interpretation, Administrative Deference, and the
Law of Stare Decisis, 97 Texas L. Rev. 1125, 1159 (2019); see Raso &
Eskridge, Chevron as a Canon, Not a Precedent: An Empirical Study of
What Motivates Justices in Agency Deference Cases, 110 Colum.
L. Rev. 1727, 1765–1766 (2010) (concluding that in practice, this Court
has not treated administrative-deference regimes such as Chevron and
Auer as binding precedents).
36 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
that it is “inconsistent with the Court’s proper role” to
insist that Congress exercise its legislative power to over-
turn such erroneous and judicially invented “default
rule[s].”104 That should be especially so here because
Auer’s default rule undermines judicial independence,
which this Court has a special responsibility to defend.
Nor is it entirely clear that Congress could overturn the
Auer doctrine legislatively. The majority describes Auer
as a “presumption” about how courts should interpret
statutes granting rulemaking power to agencies. Ante, at
12. Congress can, of course, rebut the presumption on a
statute-by-statute basis, or even for all past statutes. But
can Congress eliminate the Auer presumption for future
statutes? Perhaps—but legislation like that would raise
questions, which the majority does not address, about the
ability of one Congress to entrench its preferences by
attempting to control the interpretation of legislation
enacted by future Congresses.105 We should not be in the
business of tossing “ ‘balls . . . into Congress’s court,’ ” ante,
at 27, that would explode with constitutional questions if
Congress tried to pick them up.
B
Even assuming for argument’s sake that standard stare
decisis considerations apply, they still do not require us to
retain Auer. Even the majority implicitly recognizes this
much, as it proceeds to vacate a lower court judgment that
faithfully applied Auer and instruct that court to try again
using the majority’s new directions. If stare decisis allows
us so freely to remodel Auer, it’s hard to see on what ac-
——————
104 South Dakota v. Wayfair, Inc., 585 U.S. ___, ___ (2018) (slip op., at
18).
105 See,
e.g., Alexander & Prakash, Mother May I? Imposing Manda-
tory Prospective Rules of Statutory Interpretation, 20 Const. Comment.
97 (2003); Elhauge, Preference-Estimating Statutory Default Rules,
102 Colum. L. Rev. 2027, 2109–2110, and nn. 231–233 (2002).
Cite as: 588 U. S. ____ (2019) 37
GORSUCH, J., concurring in judgment
count it might require us to retain it.
We do not lightly overturn precedents, and we seek
always to honor the thoughtful guidance of those who have
preceded us. At the same time, everyone agrees that stare
decisis is not an “ ‘inexorable command,’ ”106 and this Court
should not always remain bound to decisions whose “ra-
tionale no longer withstands ‘careful analysis.’ ”107 Recog-
nizing the need for balance in this area, the Court has,
over time, fashioned principles to guide our treatment of
precedent. Those principles call on us to consider factors
such as “the quality of [the precedent’s] reasoning, the
workability of the rule it established, its consistency with
other related decisions, developments since the decision
was handed down, and reliance on the decision.”108 As
applied to Auer, all of these considerations weigh strongly
in favor of bidding farewell to the doctrine rather than
keeping it on life support.
First, we’ve already seen that no persuasive rationale
supports Auer. From its humble origins as an unexplained
bit of dictum in a wartime case about emergency price
controls, the Auer doctrine evolved into a rigid rule of
deference—all without any serious attempt by this Court
to rationalize it or reconcile it with the APA, the Constitu-
tion, or traditional modes of judicial review. See Part I,
supra. Even its fiercest defenders acknowledge that “Auer
deference has not remained static over time” and urge the
Court to continue to “shape” and “refin[e]” the doctrine.109
Today’s decision attempts just such a “refinement” by
hedging Auer with new qualifications and limitations. See
ante, at 11–18. This shifting ground “undermin[es] the
——————
106 Pearson v. Callahan, 555 U.S. 223, 233 (2009).
107 Arizona v. Gant, 556 U.S. 332, 348 (2009) (quoting Lawrence v.
Texas, 539 U.S. 558, 577 (2003)).
108 Janus v. State, County, and Municipal Employees, 585 U.S. ___,
___–___ (2018) (slip op., at 34–35).
109 Brief for Administrative Law Scholars as Amici Curiae 13.
38 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
force of stare decisis.”110
Second, today’s ruling all but admits that Auer has not
proved to be a workable standard. Even before this latest
overhaul, uncertainty surrounding Auer’s scope and appli-
cation had caused many to question whether there was
any “practical benefit” in continuing to apply Auer “rather
than a less deferential but more flexible and open-ended
standard like Skidmore.”111 See supra, at 10–11. Nor does
the majority’s kinder, gentler version of Auer promise to
solve the problem. On the contrary, its newly mandated
inquiry into the “character and context of the agency
interpretation,” which it admits cannot be reduced “to any
exhaustive test,” ante, at 15, seems destined only to com-
pound the confusion. See supra, at 35. Many words come
to mind to describe the tasks we assign lower court judges
today, but “workable” is not among them.
Third, the Auer doctrine is, as we have also already
seen, out of step with how courts normally interpret writ-
ten laws. When we interpret a regulation, we typically (at
least when there is no agency say-so) proceed in the same
way we would when interpreting any other written law:
We “begin our interpretation of the regulation with its
text” and, if the text is unclear, we “turn to other canons of
interpretation” and tie-breaking rules to resolve the ambi-
guity.112 And when we interpret an ambiguous statute, we
never ask what current members of Congress think it
means; in fact, we’ve held unanimously that legislators’
post-enactment views about a statute’s meaning are not
——————
110 Knick v. Township of Scott, ante, at 22; see Janus, 585 U. S., at ___
(slip op., at 23). See also Lost History 54–92; Knudsen & Wildermuth,
22 Geo. Mason L. Rev., at 658–664.
111 Hickman & Thomson, 103 Minn. L. Rev. Headnotes, at 110.
112 Green v. Brennan, 578 U.S. ___, ___ (2016) (slip op., at 5); see, e.g.,
National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
668–669 (2007) (construing regulation in light of text, history, and
canon against surplusage).
Cite as: 588 U. S. ____ (2019) 39
GORSUCH, J., concurring in judgment
even a “ ‘legitimate tool of statutory interpretation.’ ”113
Affording “controlling weight” to regulators’ post-
promulgation views about the meaning of an ambiguous
regulation is hard to square with these usual judicial
practices.114
Fourth, the explosive growth of the administrative state
over the last half-century has exacerbated Auer’s potential
for mischief. When the Court first uttered its dictum in
Seminole Rock, the administrative state was new and the
APA was only a gleam in Congress’s eye. Even 20 years
later, when the Court began reviving the Seminole Rock
dictum and turning it into a new deference doctrine, it was
not yet apparent how pervasive the administrative state
would become in the lives of ordinary Americans. Now, in
the 21st century, “[t]he administrative state wields vast
power and touches almost every aspect of daily life.”115
Among other things, it produces “ ‘reams of regula-
tions’ ”116—so many that they dwarf the statutes enacted
by Congress. As of 2018, the Code of Federal Regulations
filled 242 volumes and was about 185,000 pages long,
——————
113 Woods, 571 U. S., at 48; see also Bruesewitz v. Wyeth LLC, 562
U.S. 223, 242 (2011); Jones v. United States, 526 U.S. 227, 238 (1999);
United States v. Mine Workers, 330 U.S. 258, 281–282 (1947).
114 To be sure, under Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an
agency’s construction of a statute. But there are serious questions, too,
about whether that doctrine comports with the APA and the Constitu-
tion. See, e.g., Pereira v. Sessions, 585 U.S. ___, ___–___ (2018) (Ken-
nedy, J., concurring); Michigan v. EPA, 576 U.S. ___, ___–___ (2015)
(THOMAS, J., concurring); Perez, 575 U. S., at ___–___ (Scalia, J., con-
curring in judgment) (slip op., at 2–3). Regardless, it would be a
mistake to suppose that Auer is in any way a “logical corollary to
Chevron.” Decker, 568 U. S., at 620 (Scalia, J., concurring in part and
dissenting in part).
115 Arlington, 569 U. S., at 313 (ROBERTS, C. J., dissenting) (internal
quotation marks omitted).
116 Federal Maritime Comm’n v. South Carolina Ports Authority, 535
U.S. 743, 755 (2002).
40 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
almost quadruple the length of the most recent edition of
the U. S. Code.117 And agencies add thousands more pages
of regulations every year. Whether you think this admin-
istrative fecundity is a good or a bad thing, it surely
means that the cost of continuing to deny citizens an
impartial judicial hearing on the meaning of disputed
regulations has increased dramatically since this Court
started down this road.
Fifth, Auer has generated no serious reliance interests.
The only parties that might have relied on Auer’s promise
of deference are agencies that use post hoc interpretations
to bypass the APA’s notice-and-comment procedures. But
this Court has never suggested that the convenience of
government officials should count in the balance of stare
decisis, especially when weighed against the interests of
citizens in a fair hearing before an independent judge and
a stable and knowable set of laws. In short, “ ‘[t]he fact
that [agencies] may view [Auer deference] as an entitle-
ment does not establish the sort of reliance interest that
could outweigh the countervailing interest’ ” of all citizens
“ ‘in having their constitutional rights fully protected.’ ”118
Coming closer to the mark, the majority worries that
“abandoning Auer deference would cast doubt on many
settled constructions” of regulations on which regulated
parties might have relied. Ante, at 26. But, again, deci-
sions construing particular regulations might retain stare
decisis effect even if the Court announced that it would no
longer adhere to Auer’s interpretive methodology. After
all, decisions construing particular statutes continue to
——————
117 See Office of the Federal Register, Code of Federal Regulations:
Total Pages 1938–1949, and Total Volumes and Pages 1950–2018,
http://www.federalregister.gov/uploads/2019/04/cfrTotalPages2018.pdf;
United States v. Secretary, Fla. Dept. of Corrections, 778 F.3d 1223,
1225 (CA11 2015).
118 Janus, 585 U. S., at ___ (slip op., at 45) (quoting Gant, 556 U. S.,
at 349).
Cite as: 588 U. S. ____ (2019) 41
GORSUCH, J., concurring in judgment
command respect even when the interpretive methods
that led to those constructions fall out of favor. Besides, if
the majority is correct that abandoning Auer would re-
quire revisiting regulatory constructions that were upheld
based on Auer deference, the majority’s revision of Auer
will yield exactly the same result. There are innumerable
lower court decisions that have followed this Court’s lead
and afforded Auer deference mechanically, without con-
ducting the inquiry the Court now holds is required.
Today’s ruling casts no less doubt on the continuing validity
of those decisions than we would if we simply moved on
from Auer.
*
Overruling Auer would have taken us directly back to
Skidmore, liberating courts to decide cases based on their
independent judgment and “follow [the] agency’s [view]
only to the extent it is persuasive.”119 By contrast, the
majority’s attempt to remodel Auer’s rule into a multi-
step, multi-factor inquiry guarantees more uncertainty
and much litigation. Proceeding in this convoluted way
burdens our colleagues on the lower courts, who will have
to spend time debating deference that they could have
spent interpreting disputed regulations. It also continues
to deny the people who come before us the neutral forum
for their disputes that they rightly expect and deserve.
But this cloud may have a silver lining: The majority
leaves Auer so riddled with holes that, when all is said and
done, courts may find that it does not constrain their
independent judgment any more than Skidmore. As reen-
gineered, Auer requires courts to “exhaust all the ‘tradi-
tional tools’ of construction” before they even consider
deferring to an agency. Ante, at 13–14. And those tools
——————
119 Gonzales v. Oregon, 546 U.S. 243, 269 (2006); see Christopher, 567
U. S., at 159 (applying Skidmore after concluding that agency’s inter-
pretation did not merit Auer deference).
42 KISOR v. WILKIE
GORSUCH, J., concurring in judgment
include all sorts of tie-breaking rules for resolving ambigu-
ity even in the closest cases. Courts manage to make do
with these tools in many other areas of the law, so one
might hope they will hardly ever find them inadequate
here. And if they do, they will now have to conduct a
further inquiry that includes so few firm guides and so
many cryptic “markers” that they will rarely, if ever, have
to defer to an agency regulatory interpretation that differs
from what they believe is the best and fairest reading.
But whatever happens, this case hardly promises to be
this Court’s last word on Auer. If today’s opinion ends up
reducing Auer to the role of a tin god—officious, but ulti-
mately powerless—then a future Court should candidly
admit as much and stop requiring litigants and lower
courts to pay token homage to it. Alternatively, if Auer
proves more resilient, this Court should reassert its re-
sponsibility to say what the law is and afford the people
the neutral forum for their disputes that they expect and
deserve.
Cite as: 588 U. S. ____ (2019) 1
KAVANAUGH
KAVANAUGH , J., dissenting
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–15
_________________
JAMES L. KISOR, PETITIONER v. ROBERT WILKIE,
SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 26, 2019]
JUSTICE KAVANAUGH, with whom JUSTICE ALITO joins,
concurring in the judgment.
I agree with JUSTICE GORSUCH’s conclusion that the
Auer deference doctrine should be formally retired. I write
separately to emphasize two points.
First, I agree with THE CHIEF JUSTICE that “the dis-
tance between the majority and JUSTICE GORSUCH is not
as great as it may initially appear.” Ante, at 1 (opinion
concurring in part). The majority’s approach in Part II−B
of its opinion closely resembles the argument advanced by
the Solicitor General to “clarif[y] and narro[w]” Auer.
Brief for Respondent 15. Importantly, the majority bor-
rows from footnote 9 of this Court’s opinion in Chevron to
say that a reviewing court must “exhaust all the ‘tradi-
tional tools’ of construction” before concluding that an
agency rule is ambiguous and deferring to an agency’s
reasonable interpretation. Ante, at 14 (quoting Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843, n. 9 (1984)). If a reviewing court em-
ploys all of the traditional tools of construction, the court
will almost always reach a conclusion about the best in-
terpretation of the regulation at issue. After doing so, the
court then will have no need to adopt or defer to an agen-
cy’s contrary interpretation. In other words, the footnote 9
principle, taken seriously, means that courts will have no
2 KISOR v. WILKIE
KAVANAUGH, J., concurring in judgment
reason or basis to put a thumb on the scale in favor of an
agency when courts interpret agency regulations.
Formally rejecting Auer would have been a more direct
approach, but rigorously applying footnote 9 should lead in
most cases to the same general destination. Umpires in
games at Wrigley Field do not defer to the Cubs manager’s
in-game interpretation of Wrigley’s ground rules. So too
here.
To be sure, some cases involve regulations that employ
broad and open-ended terms like “reasonable,” “appropri-
ate,” “feasible,” or “practicable.” Those kinds of terms
afford agencies broad policy discretion, and courts allow
an agency to reasonably exercise its discretion to choose
among the options allowed by the text of the rule. But
that is more State Farm than Auer. See Motor Vehicle
Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U.S. 29 (1983).
In short, after today’s decision, a judge should engage in
appropriately rigorous scrutiny of an agency’s interpreta-
tion of a regulation, and can simultaneously be appropri-
ately deferential to an agency’s reasonable policy choices
within the discretion allowed by a regulation.
Second, I also agree with THE CHIEF JUSTICE that
“[i]ssues surrounding judicial deference to agency inter-
pretations of their own regulations are distinct from those
raised in connection with judicial deference to agency
interpretations of statutes enacted by Congress.” Ante, at
2. Like THE CHIEF JUSTICE, “I do not regard the Court’s
decision” not to formally overrule Auer “to touch upon the
latter question.” Ibid.