High court seems split over curbing federal agencies’ power

WASHINGTON (AP) — The Supreme Court seemed split Wednesday in a case where the justices are being asked to curb the power of federal agencies. The case before the justices is one in which the newly more conservative court could signal its willingness to reverse prior cases.

The issue for the justices involves how courts respond when an agency writes a regulation that is ambiguous. Previous Supreme Court cases from 1945 and 1997 say judges should defer to an agency’s interpretation of an ambiguous regulation if the interpretation is reasonable.

But those decisions have since been criticized, particularly by conservatives, as improperly giving agencies and their unelected officials vast lawmaking power. The justices are being asked to overrule those decisions. The Trump administration, meanwhile, told the justices that the decisions should be clarified and narrowed, but not overruled.

On Wednesday, Justice Neil Gorsuch seemed the most willing to overrule the court’s past decisions. Questioning the Trump administration’s head Supreme Court lawyer, Noel Francisco, Gorsuch was skeptical of the administration’s solution for revising the court’s past decisions on deference, asking whether the court should “just give up on it altogether.”

The court’s liberal minority, meanwhile, sounded strongly opposed to overruling the court’s past decisions, noting that the logic for deferring to agency officials is that they have specific technical and policy expertise in an area, something judges don’t have. Justice Stephen Breyer noted there are “hundreds of thousands, possibly millions of interpretive regulations.” And he told lawyer Paul Hughes, who was arguing for overruling the court’s prior decisions, that his position sounded like a massive “judicial power grab.” Justice Elena Kagan, meanwhile, noted that Congress could have reversed the Supreme Court on the issue of deference but has “shown no interest whatsoever,” an argument for preserving the court’s past decisions.

Conservatives have criticized the Supreme Court’s deference decisions for some time. Before his death three years ago Justice Antonin Scalia, who himself wrote the unanimous 1997 Auer v. Robbins decision the court is being asked to overrule, said it should be abandoned. Some of his colleagues have similarly questioned the decision and one that preceded it, Bowles v. Seminole Rock & Sand Co.

Justice Clarence Thomas, who as is his usual practice said nothing during Wednesday’s argument, wrote in 2016 that “any reader of this Court’s opinions should think” that the doctrine of deference to agencies’ interpretations of their own regulations “is on its last gasp.” Chief Justice John Roberts and Justice Samuel Alito have also said “serious questions” about the previous decisions on the issue have been raised.

The specific case before the justices involves veteran James Kisor, who served in the Marines from 1962 to 1966 and served in the Vietnam War. Kisor has been diagnosed with post-traumatic stress disorder and has tangled with the Department of Veterans Affairs over disability benefits. Kisor says he should get benefits back to the 1980s while the VA, interpreting its own regulation, disagrees, saying he should only get benefits back to 2006.

The case is 18-15, Kisor v. Wilkie.


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