1. 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)).
  2. 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.").
  3. 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.
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