My most recent post demonstrated that deference to an agency's "interpretation" of its own ambiguous reg is never appropriate. Instead, deference is permitted only when interpretation is no longer possible because the court has already exhausted the tools of construction in an unsuccessful attempt to resolve the question at issue. This post explains why that's a big deal.
First, it undercuts the Court's other arguments in favor of Auer deference. Consider, for example, Justice Kagan's argument in Kisor that Auer deference is appropriate "because the agency that promulgated a rule is in the 'better position [to] reconstruct' its original meaning." Kisor v. Wilkie, 139 S.Ct. 2400, 2412 (2019) (quoting Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 152 (1991)). Again, however, if the agency is just making a naked policy choice, it is not interpreting at all much less "reconstructing [the regulation's] original meaning."
Second, if a court really can't resolve an issue with the traditional tools of construction, then what sense does it make to require the court to defer to the agency's only if the court finds it "permissible"? How is a court supposed to decide whether an agency's choice on an issue of pure policy is permissible? We know it can't possibly decide by resort to the tools of construction since Kisor says deference is possible only after the legal toolkit is empty and the question remains unresolved. Wasn't the whole point of Auer to make sure agencies--not courts--are making such policy judgments?
Third, the sorts of ambiguities that the Court had in mind in Kisor presumably arise in statutes outside the administrative-law context, too, right? If so, doesn't that mean that courts resolving those ambiguities are making pure policy choices that cannot be attributed to neutral application of the tools of construction?
I could keep going, but seems to me that's more than enough to demonstrate that the problem I raised in my previous post has serious implications. Let me know what you think.