Justice Gorsuch Paraphrases Arguments from MSLF’s Amicus Brief During Oral Argument

The Supreme Court heard oral argument in Kisor v. Wilkie today, and it looks like at least one of the justices took MSLF’s brief to heart. Kisor deals with the question of how much, if any, deference courts should give to regulatory agency interpretations of their own regulations.

James Kisor, the plaintiff in the case, is a Vietnam veteran suffering from service-related PTSD who was denied benefits by the VA because of the agency’s strained interpretation of the meaning of the term “relevant evidence.” When he sued over the denial of benefits, both the trial court and the appeals court said they were required to follow the VA’s interpretation, regardless of whether they thought, in their independent legal judgment, that interpretation was a particularly reasonable one or not. And under the Supreme Court’s unfortunate “Auer deference” doctrine (named after Auer v. Robbins, the 1997 case giving the doctrine its name) that is exactly what lower courts are required to do.

Mountain States Legal Foundation (MSLF) filed an amicus curiae (“friend of the court”) brief in the Supreme Court in support of Mr. Kisor on behalf of retired Sergeant Major Jeff Howard, a decorated army veteran who, after retiring from the military, spent the next twelve years volunteering his time as a Veterans Service Officer, assisting fellow veterans apply for VA benefits.

In the brief, we told SGM Howard’s story and described the struggles he faced trying to unravel the complex, byzantine, and rapidly changing series of regulations necessary to get his veterans the medical care they deserved.

We also explained how Auer deference—a doctrine that allows government bureaucrats to effectively write, enforce, and interpret their own rules in violation of the Constitution’s careful separation of powers—makes it practically impossible for ordinary Americans to know ahead of time what the law actually means.

And it looks like Justice Gorsuch has been listening! During a line of questioning directed at the government’s lawyer, the justice brought up a central argument in our brief, reminding the government that the veterans who actually have to work with the VA on a regular basis say that Auer deference “provides highly unstable rules that they have to guess at all the time,” and further stating that he doubted the sincerity of the government’s concern for the private interests of those it regulates, when the regulated people themselves are almost entirely opposed to the government’s position.

While we won’t know the outcome of this case until the Supreme Court releases its opinions for the term later this Spring, it’s heartening to see that at least one of the justices recognizes the clear harm Auer deference inflicts on the ordinary people who have to deal with agencies every day, and is unwilling to uncritically take government claims of good faith at face value.

Only time will tell whether MSLF and Neil Gorsuch will be able to convince the rest of the Court that Auer needs to go, but we’re off to a good start.

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Kisor v. Wilkie

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