Kagan And Gorsuch Clash Over Judicial Deference To The Administrative State

A major conflict is now underway on the U.S. Supreme Court between Justices Elena Kagan and Neil Gorsuch over the issue of judicial deference to the administrative state.

- Damon Root

Their division centers in part on whether an important Supreme Court precedent, Auer v. Robbins (1997), should be overruled. In Auer, the Court held that when an “ambiguous” regulation promulgated by a federal agency is challenged in court, the judge hearing the case should defer to the agency’s preferred interpretation of its own regulation. That interpretation, the Court held in Auer, is “controlling unless plainly erroneous or inconsistent with the regulations being interpreted.”