Kisor v. Wilkie: Auer Deference Lives On, But In What Form?

The Supreme Court in Kisor v. Wilkie has declined to overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., instead narrowing deference to a federal agency’s interpretation of its own ambiguous regulations by putting in place new guideposts around its use.  What this means for Auer remains to be seen: the concurrence remarked that the Auer “doctrine emerges maimed and enfeebled—in truth, zombified” and the Kisor decision “is more a stay of execution than a pardon.”  Moreover, three justices signed on to part of an opinion casting doubt on not only Auer but also Chevron.  The tension between the majority and concurring opinions as to both Auer and Chevron is likely to lead to a fresh spate of litigation as well as cause some confusion in the federal agencies.