Supreme Court Limits Deference to an Agency’s Interpretation of its Regulation


The Supreme Court’s decision in Kisor v. Wilkie places limits on when federal agencies will be given deference in interpreting their own regulations. This is a partial departure from Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., in which it deferred to an agency’s interpretation of its own regulations, especially if a regulation was ambiguous and the agency’s interpretation was reasonable.

In its ruling, the court sets out a five-part analysis to determine whether such deference makes sense:

  • Is the regulation genuinely ambiguous?
  • Is the agency’s reading of the regulation reasonable?
  • Is the character of the agency interpretation such that it is entitled to controlling weight?
  • Does the agency’s interpretation implicate its substantive expertise?
  • Does the agency’s reading of the rule “reflect ‘fair and considered judgment’ “?

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