Administrative deference in the United States: Kisor and the consolidation of Auer jurisprudence

Auer deference, i.e. the extent to which courts defer to an agency’s interpretation of its own ambiguous regulation, is under the spotlight in the United States. The doctrine has been greatly criticised by both academics and judges concerned about the increase of the power of administrative agencies but in June 2019 the U.S. Supreme Court confirmed its constitutionality by a 5-4 majority in Kisor v. Wilkie. Justice Kagan authored the majority opinion and insisted that the Auer doctrine is still alive. Justice Gorsuch, on the other hand, argued in his concurrence that because of the new limitations that Kisor imposes on administrative deference, Auer has become a paper tiger, meaning that it has lost its bite and efficacy. This abstract briefly reviews the Kisor decision and the points raised in the majority opinion. It argues that the decision has not changed the Auer doctrine but instead consolidated its technical aspects