During oral argument on March 27, 2019, for Kisor v. Wilkie, Justice Stephen Breyer said overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.” He argued that, without Auer, judges could make decisions best left to experts in executive agencies. Justice Neil Gorsuch held a different view, arguing that federal law requires independent judges to decide all questions of law. Gorsuch said the promise of independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” facing an agency in court.
The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983. The U.S. Supreme Court will decide whether to defer to the expertise of the VA or to apply their own view of what the VA regulation means.