I came across this supreme Court case where a Marine veteran is fighting with the VA about benefits for his PTSD. While the details may seem a little hard to follow, there is one very important question that Mr. Kisor wants the court to answer: When there is ambiguity in a law that Congress writes, should it be assumed that the executive agency’s interpretation is correct unless proven otherwise?
The Department of Veterans Affairs (VA), denied that Mr. Kishor had PTSD in 1983. Then, in 2006, Mr. Kisor appealed the VA’s decision, including material that existed in 1983. The law states that if “relevant” documents existed at the time of the original denial, then Mr. Kisor was entitled to benefits dating back to 1983. Otherwise, his benefits would start with his successful appeal in 2006. Lower courts have found that both Mr. Kisor and the VA had reasonable views of the whether the documents were relevant or not. The question for the court is: Should the courts assume the VA’s interpretation is correct?
In the supreme Court cases and Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins, the court established the precedent that it should defer to the agencies interpretation as long as it was reasonable. But is that the way it should be? Most of the oral argument I read dealt with two questions. 1) Would the courts or the agency be better able to determine the correct answer? And 2) How disruptive would it be to overrule the Seminole Rock & Auer precedents. What I didn’t see was any discussion of trying to determine what the intent of Congress was.
A lot of the discussion around who should break the ambiguity centered around technical knowledge of the issue at hand.
JUSTICE BREYER: But, as a practical matter, you’ve read the SG’s brief, I mean, there are hundreds of thousands, possibly millions of interpretive regulations. I mean, they give an example, one of them, where the Court deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group. Do you know how much I know about that? (Laughter.)
The courts and the attorney for the VA said those in the executive agencies have better technical knowledge, so they should decide, and Justice Breyer gives the example above. But while the agency may have more knowledge than the justices, that doesn’t mean they have more than the other party in the case. Also, the opinion expressed by the government and Justice Breyer assumes three crucial points: 1) That the question at hand is a matter of technical understanding rather than one of justice, 2) That those in the executive agencies have no agenda of their own that may color their judgment, and 3) That any court would find the agencies’ interpretation reasonable. In other words, is a document not relevant because in their technically expert opinion it was not or because deciding so led to a more just outcome? Is such an interpretation reasonable? And, of course, the question is, do those making this decision at the VA have a vested interest in the decision? To use a sports analogy, when a foul is called, should the referees defer to the home team’s interpretation of the rule?
The other concern some of the justices on the court had was what would happen if they overturned Auer and its predecessor, Seminole Rock? How many cases already decided would have to be re-litigated after this new precedent was set?
JUSTICE GINSBURG: — what about the lower courts? Let’s — let’s say your argument is accepted and Auer is overruled. There may have been a dozen or so cases, Auer cases in this Court, but there are probably hundreds in the lower courts. So do all of those cases — what happens to all of those cases where there was reliance on Auer in the lower courts?
In my mind a better question is what is the purpose of the court? To seek a just outcome for the parties involved or to not make more work for the rest of the judicial branch? If the precedents set by Seminole Rock and Auer do not lead to a just outcome, shouldn’t the court be more concerned with getting justice than how much work they make?
What I think would be the most pertinent question was never asked: What was the intent of Congress? I have been told that whenever there is ambiguity in the text of a law, the intent of the legislature should be determined. No one seemed to go back to the debate in Congress to determine their intent. So what you have with Auer and Seminole Rock, effectively, is the court legislating that the bureaucratic agencies can legislate as long as the courts find it reasonable. This precedent means the court has allowed the executive agencies to place their thumb on the scales of justice.
Conclusion
I am not at all surprised that the federal government, in the form of the judicial branch, would defer to the opinion of the federal government, in the form of the executive branch. Meanwhile, the question we as citizens should be asking ourselves: Is this how we think the courts should act? Should one side in a case have a “home field advantage”? Should the court’s concern about how much work will be created be placed on the scales of justice?
Hopefully, the court will get past their slavish devotion to their own precedent and look for justice, not only for Mr. Kisor, but for all who have been caught in the gears of our bureaucratic government.
