In a previous post, I posed the following riddle:
Key to the Supreme Court's rationale for preserving Auer deference was its commitment to the "always rebuttable" presumption that an agency's "power authoritatively to interpret its own regulations is a component of [its] delegated lawmaking powers." Kisor v. Wilkie, 139 S.Ct. 2400, 2412 (2019) (quoting Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 151 (1991)).
Yet the rule the Court preserved renders deference appropriate only when the Court is incapable of resolving the issue on its own with the traditional tools of interpretation: "[O]nly when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is 'more [one] of policy than of law.'" Id. at 2415 (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991)); id. ("[T]he core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over.").
But if the tools of interpretation are exhausted such that the legal toolkit is empty before a court may even consider deferring to an agency's view, that view cannot possibly be the product of interpretation. Therefore, courts aren't really deferring to agency interpretations at all; they're deferring to agency policy choices.
I then asked readers to "tell me where I'm wrong here." Finally, in a subsequent post, I explained some of the reasons I think you should take my riddle seriously.
I'm happy to report that a scholar who has written about judicial deference doctrine reached out with the following response:
Responding to the question raised in a recent blog post (https://www.admin.law/riddle-me-this/), I wouldn't say you're "wrong" precisely so much as I would suggest that courts have been imprecise in distinguishing interpretation from policy choice in this context, often using the two terms interchangeably when talking about statutory and regulatory interpretation. I think the point the Court was making in the Chevron decision is that, sometimes, what looks like an interpretation really is a policy choice. (We'll leave to the side the distinction between interpretation and construction that Larry Solum and others have been making for years.) But the Court did not shy away from continuing to use the interpretation term to describe what it was evaluating at Chevron step two. I think Kagan's analysis in Kisor just continues that tradition.
I found this response insightful and helpful. I have more to say about it but will hold off for now to give others a chance to weigh in. What say you?