NAME: James L. Kisor, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs
JOINING: Roberts, Ginsburg, Breyer, Sotomayor
JOINING: Thomas, Alito, Kavanaugh
Case CommentaryEverybody Concurred on the decision, but there was widespread disagreement regarding the logistical steps in getting there.
Kagan wrote the Opinion of the Court, but many of those joining did not join in full. More importantly, Roberts, who agreed with Kagan, said there wasn't much practical difference between Kagan's Opinion and Gorsuch's Contrary Opinion. And two of those who agreed with Gorsuch (and his Contrary Opinion) went on to say they, too, didn't see much practical difference between the two Principal Opinions, either: Kagan v. Gorsuch in the Ultimate Smack Down!
Thus, the Opinions arranged themselves as follows:
- Pro Auer
- But It Doesn't Matter
- Anti Auer
- But It Doesn't Matter
Or in Gorsuch's words:
The Court cannot muster even five votes to say that Auer is lawful or wise.
So the doctrine emerges maimed and enfeebled - in truth, zombified.
The court of appeals was guilty of nothing more than faithfully following Auer. But the majority today invokes stare decisis, of all things, to vacate that judgment and tell the court of appeals to try again using its newly retooled, multi-factored, and far less determinate version of Auer.
I'm no lawyer. I don't play one on TV. And the more Supreme Court Slips I read, the more I am convinced The Law is merely Opinion... a tool with which to get one's way. So, you might want to take anything I say with a grain of salt.
That said, as I read it (and as Gorsuch writes it), Auer is a Doctrine of:
Systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.
Essentially (if one wants the lay person's interpretation), it is a Doctrine of ties going to the Government... with the Government getting to decide what constitutes a tie.
Of course, that would be the Old Version of Auer. The new version of Auer is so watered down as to be meaningless... with ties going to the government only when there really is a tie: meaning, only after a court has confirmed that the metric used to determine whether there is a a tie (or not) is fair, just, and reasonable.
But it is no longer Auer!
I think Gorsuch smacked the ball out of the park on this one, hitting back-to-back home runs, making a few field goals, and running the hundred yard dash in under three seconds all rolled into one.
He's just right.
Auer as originally decided is stupid... so stupid, that it is inane to call what remains after the present Court is through with it Auer.
Yet, that is exactly what a Majority of The Court has decided to do.
And from that, I will let you draw your own conclusions.
For, I have other things to talk about.
Here's another quote from Gorsuch's Most Awesome of Opinions.
As of 2018, the Code of Federal Regulations filled 242 volumes and was about 185,000 pages long, almost quadruple the length of the most recent edition of the U. S. Code.
The Old Version of Auer enshrined those 185,000 pages of Federal Regulation as Law.
The New Version of Auer accepts those Regulations as Regulations, preserving the power of Judicial Oversight.
Um, if you want to know my overriding political stance, it's that 185,000 Pages of Regulation and +/-45,000 Pages of Law is entirely too much.
It's too specific... and too specifically divergent.
This case concerns an Appeal to a Decision made by The Department of Veteran's Affairs. I would guess (but don't know and I'm certainly not going to research this supposition) that The Department of Social Security, The Department of Health & Welfare (if there, indeed, is a Department so named), and The Department of Fish & Game (and in fact, all of The Departments) have Different Rules of Procedure.
I don't see the need for Different Rules of Procedure for Different Departments.
I was reading the Closure Notice for the Burning Man Festival the other day. I wanted to learn about Burning Man. And this was one of my sources of information. In said closure, The Bureau of Land Management (or whoever wrote it) defined what they meant by Driving While Intoxicated... or however they worded it.
I would think Driving Under the Influence (so, we are talking about a DUI, here) would be sort of consistent across instances of the offence in competing jurisdictions... or could be.
And where it could be, I say it should be.
Now, here's a question for all you Legal Scholars out there. Auer (both the new and old version) defends an Agency's right to interpret its own Regulations.
How is this not an Unconstitutional Delegation of Congressional Authority?
You have 60 Minutes in which to Answer!
For Extra Credit, please address The Doctrine of Void for Vagueness, extrapolating where possible how a lack of adherence to Void for Vagueness (and the previously mentioned Unconstitutional Delegation) underscores the random, opinionated, and completely arbitrary application of The Rule of Law that infests The Modern Judiciary.