This post will explain the first--and perhaps most important--reason why I don't think Kisor makes much sense, namely that it purports to uphold Auer but, in fact, effectively overrules it.
In an earlier post, I argued that SAS v. IANCU effectively overruled Chevron. Here's the gist of the argument:
Justice Gorsuch's majority opinion in SAS Institute v. IANCU, 138 S. Ct. 1348, 1359 (2018), explained that "[e]ven under Chevron,we owe an agency's interpretation of the law no deference unless, after 'employing traditional tools of statutory construction,' we find ourselves unable to discern Congress's meaning." Read that again . . . slowly. If you take it seriously--i.e. if courts cannot proceed to step two unless they find themselves unable to discern Congress's meaning after squeezing every bit of juice out of the traditional tools of statutory construction possible--then Chevron is arguably dead letter.
In cases decided before Chevron (and in statutory interpretation cases that arise today but outside of Chevron's "domain,") courts are almost always able to find a way to say what the law is. With rare exceptions (like where a statute is void for vagueness), they never throw up their hands and declare themselves "unable to discern Congress's meaning." As a result, following IANCU's instructions should mean resolving virtually every Chevron case at step one. In other words, it should mean the end of Chevron.
I stand by that post. In fact, I think Justice Kagan's and Justice Gorsuch's opinions in Kisor confirm my logic. Justice Kagan's opinion for the Court echoes IANCU's reasoning in demanding that courts exhaust all traditional tools of construction in the Auer context before "wav[ing] the ambiguity flag" and deferring:
First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Seminole Rock, 325 U.S. at 414, 65 S.Ct. 1215 (deferring only “if the meaning of the words used is in doubt”). If uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means—and the court must give it effect, as the court would any law. Otherwise said, the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over. See supra, at 2412 - 2413. But if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense. Deference in that circumstance would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” See Christensen, 529 U.S. at 588, 120 S.Ct. 1655. Auer does not, and indeed could not, go that far.
And before concluding that a rule is genuinely ambiguous, a court must exhaust all the “traditional tools” of construction. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (adopting the same approach for ambiguous statutes). For again, only 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.” Pauley, 501 U.S. at 696, 111 S.Ct. 2524. That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. See id., at 707, 111 S.Ct. 2524 (SCALIA, J., dissenting) (A regulation is not ambiguous merely because “discerning the only possible interpretation requires a taxing inquiry”). To make that effort, a court must “carefully consider[ ]” the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Ibid. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.
As I explained in my post on IANCU, however, if courts actually do exhaust all traditional tools of construction, they'll almost certainly be able to answer the interpretive question. How do I know? Because in case after case over the course of centuries, courts have used (and continue to use) those tools to resolve all manner of interpretive puzzles outside the adlaw context and, to my knowledge, almost never end up concluding that "the law [has] run out," making it impossible for the court to resolve the question. The only exceptions I'm aware of are cases where the Court concludes the language at issue is void for vagueness. Taking Kisor seriously, then, means Auer deference is dunnzo.
Justice Gorsuch makes nearly the same point in his Kisor concurrence:
To be sure, Justice KAGAN paints a very different picture of Auer, asking us to imagine it riding to the rescue only in cases where the scales of justice are evenly balanced between two equally persuasive readings. But that’s a fantasy: “If nature knows of such equipoise in legal arguments, the courts at least do not.” In the real world the judge uses his traditional interpretive toolkit, full of canons and tiebreaking rules, to reach a decision about the best and fairest reading of the law. Of course, there are close cases and reasonable judges will sometimes disagree. But every day, in courts throughout this country, judges manage with these traditional tools to reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution.
The fact that Justice Gorsuch made this point in the Auer context is especially important because he wrote the IANCU opinion, proving that the point I made in my "SAS v. IANCU Overrules Chevron" post was not lost on IANCU's author.
All of this is why Chief Justice Roberts and Justices Kavanaugh and Alito were willing to join the Kisor majority in "upholding" Auer on stare decisis grounds. Hence their emphasis on there really being little, if any, practical difference between the majority opinion's new, super-limited Auer doctrine and Justice Gorsuch's preferred outcome of overruling Auer altogether.