- 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.
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