Should courts defer to agencies' interpretations of their own regulations?

By Aaron Rice
February 8, 2019

The Mississippi Justice Institute has filed an amicus brief in a case that questions whether courts are required to defer to executive agencies’ legal interpretations of their own regulations.

The brief was filed along with four other constitutional litigation centers from across the country in the case Kisorv. Wilkie. It questions the validity of a legal doctrine known as Auer deference. Under this doctrine, courts are required to defer to agencies’ interpretations of these often ambiguous regulations.

This, despite the fact that interpreting the law is the duty of the courts, not the executive branch.

As a result, federal agencies are incentivized to use vague language when writing their regulations, allowing them to be interpreted on an “as needed” basis. Once challenged in court, the interpretation of the language favors the agency, and receives minimal inquiry.

In the amicus brief, MJI maintains that the legal doctrine of Auer deference gives executive agencies both judicial and legislative powers that the Constitution does not grant them, and argues that any deference afforded to a federal agency must be consistent with the Constitution.

Click here to read the full brief.


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