Less than two hours after wrapping up a speech in Raleigh, David French of National Review Online cranked out another top-notch essay. This one focused on an important U.S. Supreme Court case.
There was a much bigger — but much more boring — case that that the Supreme Court accepted for review, … and that case could strike at the heart of the administrative state.
The case is called Kisor v. Wilkie, and it’s a veteran’s-benefit case involving a Marine seeking retroactive benefits for his PTSD. The case hinged on the VA’s interpretation of the word “relevant” in the applicable federal regulations. In his petition for Supreme Court review, Mr. Kisor submitted two questions:
Whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock and Sand Co.
Alternatively, whether Auer deference should yield to a substantive canon of construction.The Court granted review on Question 1 only.
Asleep yet? Well, wake up because I’m going to explain now why this is a Big Deal in the battle against the metastasizing administrative state. Auer and Bowles are the Supreme Court cases that “direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.” It’s the Little Satan that works with the Great Satan — Chevron deference — to fuel the explosive growth in the power of executive-branch agencies.
