I've become obsessed with Kisor v. Wilkie, 139 S. Ct. 2400 (June 26, 2019). Yesterday, I posted a squib on Kisor's interaction with the Step-One-and-a-Half doctrine. In the coming weeks, I intend to address nine additional questions/topics about the case. If Kisor isn't your thing, I apologize. If it is, you're welcome. As always, I'm very interested in any thoughts people have on these topics, so please leave yours in the comments.
Here, in no particular order, are the questions/topics I intend to discuss:
- The Chief Justice and Justices Kavanaugh and Alito say that the "[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress." How so? Why does it matter?
- Does Kisor make sense?
- Moieties, Expertise, and Adlaw Sissies
- The Court says that "not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference," and commands courts "applying Auer [to] make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight." In so commanding, the Court notes that Mead "requir[es] an analogous though not identical inquiry for Chevron deference." How do the relevant inquiries differ and what difference does it make?
- What, if anything, does Kisor tell us about Brand X?
- Is Justice Kagan's defense of Auer as compatible with the APA convincing?
- What, if anything, does Kisor tell us about Skidmore?
- What, if anything, does Kisor tell us about State Farm?
- How are lower courts applying Kisor?
If there are others that interest you, let me know. I think I should be able to confine my rants on most of these topics to a single post, but I can already tell that won't be possible for at least a couple of them. We'll see how it goes. I think I'll start with question two now . . . .