Justices weigh agency rulemaking power

The Supreme Court on Wednesday appeared reluctant to overturn two precedent-setting decisions that require judges to defer to an agency’s reasonable interpretation of a regulation when it’s challenged in court.

Opponents of the legal principle say it has bolstered the power of unelected government officials to write vague and broad rules that can later be interpreted from their point of view without public notice or comment. The “novel” interpretations, as opponents call them, have the effect and force of law.


The court’s conservative majority seemed to agree that deference to agency interpretations should be limited, but not everyone seemed to be on board with the government's approach.

The case before the court stemmed from a dispute over the Department of Veterans Affairs’s (VA) interpretation of its rule governing disability benefits.

At the center of the dispute is James Kisor, a Marine Corps veteran who in 2006 appealed the VA’s decision in 1983 to deny him disability benefits for post-traumatic stress disorder.

The agency ultimately awarded him benefits but refused to make them retroactive, saying additional documents from 1983 that he submitted in 2006 weren’t relevant to their original decision.

Kisor then challenged the VA’s interpretation of what constitutes “relevant.”

The U.S. Court of Appeals for the Federal Circuit affirmed that the VA's appeals board correctly deferred to the agency's interpretation.

Kisor argues that deference given to agency interpretations is "constitutionally suspect" because it strips power from the judiciary and transfers it to the executive branch and erodes the obligation courts have to serve as a check on the political branches.

But Justice Elena Kagan, of the court’s liberal wing, said Congress could have acted long ago.

“Congress knows that this goes on,” she said during Wednesday's hourlong oral arguments. “Congress has repeatedly acted in this sphere and shown no interest whatsoever in reversing the rule that the court has long established. So why is it that overruling is the appropriate course here?”

Kagan said the court takes overruling prior precedent “super seriously.”

“I mean we used to,” she said in an apparent jab at the court’s conservative wing, which overruled two cases in the previous term.

The government is pushing the courts to clarify and narrow the duty impressed upon judges. Deference should be given to agencies only if the regulation is ambiguous and its interpretation is reasonable, consistent with the agency’s prior views, was made by someone at a high level, rests on the agency’s expertise and was issued with fair notice, the government argued.

Justice Neil Gorsuch, however, seemed to suggest that standard could cause confusion among judges.

“For the life of me, I don't know how high a level a person has to be before we're going to defer to him, or how much notice is fair, or how much expertise counts,” he said.

Justice Stephen Breyer, though, argued that agency officials with expertise should be interpreting regulations.

Letting judges decide, he said, would be the greatest judicial power grab since Marbury v. Madison, which gave courts the power to decide legal disputes. He noted that the 1803 case was correctly decided, drawing laughs from the audience.

A decision in Kisor's case is due out by June.