Kisor v. Wilkie (18-15)

argument 18-15

Kisor v. Wilkie

Supreme Court of the United States 1h 1m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central dispute over deference in Kisor v. Wilkie?

John G. Roberts 0:00

We will hear argument this morning in case eighteen fifteen, Kaiser versus Wilkie, the

Michael P. Dreeben 0:04

Secretary of Veterans Affairs. Mr. Hughes. Thank you, Mr Chief Justice, and may it please the Court. The government now appears to agree with our principal contention. Deference does not apply in this case. The court should arrive at that result by overturning the doctrine of seminal rock in our deference in its entirety. Agencies may issue a wide array of rules, interpretations, and even

Elena Kagan 0:30

if The best reading of the statute is the SGs in this case. Well Your Honor we're making. making that assumption, why do we need to reach that broader issue?

Michael P. Dreeben 0:43

Well, Your Honor, we think we have the best reading of the regulation of the United States. I know

Elena Kagan 0:46

you think so, but if uh this was a hypothetical.

Michael P. Dreeben 0:48

Well, Your Honor, the Federal Circuit below rested its decision on a complete reliance on our deference. So we think that that is the principal question that was presented by the Federal Circuit. So we think the first order of business is to determine whether or not the Federal Circuit was correct in deciding that our deference resolved this case.

Unknown 1:06

But the government tells us it's really beside the point. Because not only well, either the regulation is unambiguous or if there's any ambiguity, the uh Federal Circuit's reading, the the veteran administration reading is by far the better reading.

Michael P. Dreeben 1:27

Your Honor, the Federal Circuit, though, relied on our deference because the Government asked the Federal Circuit to do so. The Government expressly argued to the Federal Circuit that our deference applies in this case, and the Federal Circuit took the Government's invitation to rest its decision on our deference. So I think this case does squarely present that question because of the government's own argument before the Federal Circuit, which the Federal Circuit adopted. And that is, I believe, both the premise of the petition. And the question which the court granted was to resolve whether or not our deference is the same.

Sonia Sotomayor 1:57

So could you turn to the government's argument where they they they seem to concede that uh our is wrong but want us to retain some some reduced or revised version of it. Wha why shouldn't

Michael P. Dreeben 2:09

we do that? So to begin with, Your Honor, we certainly think the government's argument is better than the status quo, and we understand it to be a version of deference, under which deference would not apply in this case, in the vast majority of cases coming from the Veterans Court. So we certainly think it's superior to what currently exists. We don't think, though, it's the ultimately the right answer for a few reasons. The first is the most uh important practical and legal problem with our deference is it is a circumvention of The notice and comment requirements that Congress has imposed, generally in the APA, as well as in particular statutory schemes, including this one. The government's rule still allows agencies to put a thumb on the scale without providing.

Michael P. Dreeben 2:46

I'm

Elena Kagan 2:47

sorry, but that that's not quite true. It I don't think that here it was an issue of them trying to avoid notice and comment. New il legal issues arise. normally in adjudications. And that's what happened here. Um It's not like they who should have anticipated that they needed to be more specific about this until the issue presented itself in a case. and they reasoned an answer. And they gave an answer. So the question really is Um not one of that in all our deference cases Are we talking about the need to give notice? and uh comment time.

Michael P. Dreeben 3:38

Your Honor, I agree with all of that, which is to say the agency can do these things. It can be precedential with respect to the agency, it can bind future agency adjudicators. The only question is for that agency activity to also subsequently have legal binding effect in court, what did Congress intend the procedures for the agency to undertake for the agency's action to have prospective force of law? And again, I think the agency's the

Unknown 4:11

Uh we've made it plain that our does not call for blind deference. The court must first of all agree that the regulation is indeed ambiguous and that the agency interpretation is a reasonable one.