The Supreme Court, in Kisor v. Wilkie, 588 U.S. ___ (2019), did not overrule prior opinions in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co – in which deference is given to an agency’s reasonable reading of its own genuinely ambiguous regulations. The summary of this opinion, by Justice Kagan, is as follows:
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 decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important 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.
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal..