OA293: My Deference & Auer Deference (Kisor v. Wilkie)

<p><!-- wp:paragraph --></p> <p>Today's episode revisits a narrow area of administrative law we last discussed in <a href= "https://openargs.com/oa266-auer-deference-florida-felons/">Episode 266</a>, namely, <em>Auer</em> deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court <a href= "https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">has ruled in</a> <em><a href= "https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">Kisor v. Wilkie</a></em><a href= "https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">.</a> We also discuss the recent unsealing of court records thanks to a CNN reporter <em>and</em> we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up!</p> <p><!-- /wp:paragraph --></p> <p><!-- wp:paragraph --></p> <p>We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it <em>is</em> significant, and you won't want to miss why.</p> <p><!-- /wp:paragraph --></p> <p><!-- wp:paragraph --></p> <p>Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the <em>exact</em> difference between <em>Chevron</em> deference and <em>Auer</em> deference? We've got you covered -- including, in particular, how the latter came under attack in <em><a href= "https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">Kisor v. Wilkie</a></em>, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency's interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch's interpretation of those rules? <em>Kisor</em> gives us a slightly different answer than you might expect, all while an