SCOTUS Again Grants Bureaucrats Victory Over Justice

Chief Justice Roberts shows huge deference to unelected bureaucrats.

Louis DeBroux · Jul. 3, 2019

Chief Justice John Roberts has been a huge disappointment, seemingly more concerned about reinforcing the institution of government than upholding the text of the Constitution.

The latest example comes this week with the Supreme Court’s ruling in Kisor v. Wilkie, in which Vietnam veteran James Kisor challenged a Department of Veterans Affairs (VA) decision in 1983 to deny him disability benefits for PTSD treatment. In 2006, Kisor sought to have his case reopened based on documents the VA had not considered in its initial decision. After review, the VA granted Kisor his due benefits, but refused to make the benefits retroactive.

Kisor challenged the decision in federal court, and lost. The U.S. Court of Appeals for the Federal Circuit stated in its ruling that “the heart of this appeal” was his “challenge to the VA’s interpretation of the term ‘relevant.’”

As justification, the Court of Appeals referred to a prior Supreme Court ruling in Auer v. Robbins, requiring courts to defer to executive agency interpretations of their own regulations. It’s hard to imagine how the deck could be any more stacked against a citizen who challenges a federal agency. Under Auer, federal agencies write the law, execute the law, and then get the trifecta with the power to interpret the law.

The benefit to government is blatantly obvious. The federal government wins nearly 80% of cases where a regulatory interpretation is challenged. This makes an utter mockery of the separation of power.

In declining to overturn Auer, Justice Elena Kagan argued, “The principle of stare decisis — in English, letting decisions stand — is an important one for stability and evenhandedness in the law.” In some cases, in other words, precedent is more important than justice.

Allowing a small nod of acknowledgment to the unfairness of the ruling (the Court unanimously agreed the lower court was wrong to automatically defer to the VA in this case), Justice Kagan offered a confusing ray of hope for future circumscription of judicial deference to government, stating that Auer applies only “when a regulation is genuinely ambiguous,” but “even then, not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight” and demonstrates “an agency’s authoritative, expertise-based, ‘fair[, or] considered judgment.’”

Got that? Auer applies, except when it doesn’t. Agencies must receive deference, but not always, and only after a multi-step test. This is a recipe for disaster.

Justice Neil Gorsuch correctly described this monstrosity of a decision as “more a stay of execution than a pardon” of the Auer doctrine, which “emerges maimed and enfeebled — in truth, zombified.” Gorsuch continued, “Retaining even this debilitated version of Auer threatens to force litigants and lower courts to jump through needless and perplexing new hoops and in the process deny the people the independent judicial decisions they deserve. All to what end? So that we may pretend to abide stare decisis?”

The decision perpetuates a system where the lowliest citizen is pitted against the federal leviathan; the citizen handicapped from the start. As Justice Gorsuch noted in his dissent, the end result is a “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.”

While James Kisor is denied justice, the Court, in establishing a modicum of abridgment to the power of federal agencies to act as legislators, enforcers, and judges, a small door has been opened for future restrictions on, or even the reversal of, the Auer doctrine, and its congressional corollary, the Chevron doctrine (both of which are rare but consequential mistakes at the hands of the late Justice Antonin Scalia).

As for Chief Justice Roberts, he continues to contradict himself.

In siding with the leftist majority in Kisor, Roberts says the Court must defer to federal agencies in interpreting their own regulations, as long as the interpretation is remotely plausible.

Yet just last week, in Department of Commerce v. New York, in which the state of New York challenged Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the 2020 census, Justice Roberts joined the four liberal justices in blocking Ross from doing so.

In his decision, Justice Roberts argued that, though Secretary Ross acted within the law, and such an action was well within the purview of the authority granted by Congress, Ross had a political motivation for adding the question to the census, and must therefore be denied.

Numerous Supreme Court precedents have held that a political motivation is not a disqualifier for federal officials’ actions, and Roberts even admitted as much when he voted with the majority last week in a gerrymandering case, in which he argued the Court should not involve itself in inherently political questions. So why no deference for Secretary Ross?

Justice Roberts once again took it upon himself to act on political considerations in order to prove that the Court is not politically biased.

The end result is that the Court has further muddied the waters regarding the constitutional separation of powers, it has strengthened government power at the expense of Liberty, and it has done so in ways that are utterly confusing and contradictory.

This is certainly not the form of government envisioned by the Founders, and we are worse off as a result.

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