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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–15

															_________________

															james l. kisor, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 26, 2019]

															Justice Kagan announced the judgment of the
Court and delivered the opinion of the Court with respect to Parts
I, II–B, III–B, and IV, and an opinion with respect to Parts II–A
and III–A, in which Justice Ginsburg, Justice Breyer, and Justice
Sotomayor join.

															This Court has often deferred to agencies’
reasonable readings of genuinely ambiguous regulations. We call
that practice Auer deference, or sometimes Seminole
Rock deference, after two cases in which we employed it. See Auer v. Robbins , 519 U.S.
452 (1997); Bowles v. Seminole Rock & Sand
Co. , 325 U.S.
410 (1945). The only question presented here is whether we
should overrule those decisions, discarding the deference they give
to agencies. We answer that question no. Auer deference
retains an important role in construing agency regulations. But
even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to
apply it depends on a range of considerations that we have noted
now and again, but compile and further develop today. The deference
doctrine we describe is potent in its place, but cabined in its
scope. On remand, the Court of Appeals should decide whether it
applies to the agency interpretation at issue.

															I

															We begin by summarizing how petitioner James
Kisor’s case made its way to this Court. Truth be told, nothing
recounted in this Part has much bearing on the rest of our
decision. The question whether to overrule Auer does not
turn on any single application, whether right or wrong, of that
decision’s deference doctrine. But a recitation of the facts and
proceedings below at least shows how the question presented
arose.

															Kisor is a Vietnam War veteran seeking
disability benefits from the Department of Veterans Affairs (VA).
He first applied in 1982, alleging that he had developed
post-traumatic stress disorder (PTSD) as a result of his
participation in a military action called Operation Harvest Moon.
The report of the agency’s evaluating psychiatrist noted Kisor’s
involvement in that battle, but found that he “d[id] not suffer
from PTSD.” App. 12, 14. The VA thus denied Kisor benefits. There
matters stood until 2006, when Kisor moved to reopen his claim.
Based on a new psychiatric report, the VA this time agreed that
Kisor suffered from PTSD. But it granted him benefits only from the
date of his motion to reopen, rather than (as he requested) from
the date of his first application.

															The Board of Veterans’ Appeals—a part of the VA,
represented in Kisor’s case by a single administrative
judge—affirmed that timing decision, based on its interpretation of
an agency rule. Under the VA’s regulation, the agency could grant
Kisor retroactive benefits if it found there were “relevant
official service department records” that it had not considered in
its initial denial. See 38 CFR §3.156(c)(1) (2013). The Board
acknowledged that Kisor had come up with two new service records,
both confirming his participation in Operation Harvest Moon. But
according to the Board, those records were not “relevant” because
they did not go to the reason for the de- nial—that Kisor did not
have PTSD. See App. to Pet. for Cert. 43a (“[The] documents were
not relevant to the decision in May 1983 because the basis of the
denial was that a diagnosis of PTSD was not warranted, not a
dispute as to whether or not the Veteran engaged in combat”). The
Court of Appeals for Veterans Claims, an independent Article I
court that initially reviews the Board’s decisions, affirmed for
the same reason.

															The Court of Appeals for the Federal Circuit
also affirmed, but it did so based on deference to the Board’s
interpretation of the VA rule. See Kisor v. Shulkin ,
869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal Circuit
that to count as “relevant,” a service record need not (as the
Board thought) “counter[ ] the basis of the prior denial”;
instead, it could relate to some other criterion for obtaining
disability benefits. Id., at 1366 (internal quotation marks
omitted). The Federal Circuit found the regulation “ambiguous” as
between the two readings. Id., at 1367. The rule, said the
court, does not specifically address “whether ‘relevant’ records
are those casting doubt on the agency’s prior [rationale or] those
relating to the veteran’s claim more broadly.” Ibid. So how
to choose between the two views? The court continued: “Both parties
insist that the plain regulatory language supports their case, and
neither party’s position strikes us as unreasonable.” Id. ,
at 1368. Because that was so, the court believed Auer deference appropriate: The agency’s construction of its own
regulation would govern unless “plainly erroneous or inconsistent
with the VA’s regulatory framework.” Ibid. (internal
quotation marks omitted). Applying that standard, the court upheld
the Board’s reading—and so approved the denial of retroactive
benefits.

															We then granted certiorari to decide whether to
overrule Auer and (its predecessor) Seminole Rock .
586 U. S. ___ (2018).

															II

															Before addressing that question directly, we
spend some time describing what Auer deference is, and is
not, for. You might view this Part as “just background” because we
have made many of its points in prior decisions. But even if so, it
is background that matters. For our account of why the doctrine
emerged—and also how we have limited it—goes a long way toward
explaining our view that it is worth preserving.

															A

															Begin with a familiar problem in
administrative law: For various reasons, regulations may be
genuinely ambiguous. They may not directly or clearly address every
issue; when applied to some fact patterns, they may prove
susceptible to more than one reasonable reading. Sometimes, this
sort of ambiguity arises from careless drafting—the use of a
dangling modifier, an awkward word, an opaque construction. But
often, ambiguity reflects the well-known limits of expression or
knowledge. The subject matter of a rule “may be so specialized and
varying in nature as to be impossible”—or at any rate,
impracticable—to capture in its every detail. SEC v. Chenery Corp. , 332 U.S.
194 , 203 (1947). Or a “problem[ ] may arise” that the
agency, when drafting the rule, “could not [have] reasonably
foresee[n].” Id., at 202. Whichever the case, the result is
to create real uncertainties about a regulation’s meaning.

															Consider these examples:

															In a rule issued to implement the Americans with
Disabilities Act (ADA), the Department of Justice requires theaters
and stadiums to provide people with disabilities “lines of sight
comparable to those for members of the general public.” 28 CFR pt.
36, App. A, p. 563 (1996). Must the Washington Wiz- ards construct
wheelchair seating to offer lines of sight over spectators when
they rise to their feet? Or is it enough that the facility offers
comparable views so long as everyone remains seated? See Paralyzed Veterans of Am. v. D. C. Arena L. P. , 117 F.3d 579 , 581–582 (CADC 1997).

															The Transportation Security Administration (TSA)
requires that liquids, gels, and aerosols in carry-on baggage be
packed in containers smaller than 3.4 ounces and carried in a clear
plastic bag. Does a traveler have to pack his jar of truffle pâté
in that way? See Laba v. Copeland , 2016 WL 5958241,
*1 (WDNC, Oct. 13, 2016).

															The Mine Safety and Health Administration issues
a rule requiring employers to report occupational diseases within
two weeks after they are “diagnosed.” 30 CFR §50.20(a) (1993). Do
chest X-ray results that “scor[e]” above some level of opacity
count as a “diagnosis”? What level, exactly? See American Min.
Congress v. Mine Safety and Health Admin. , 995 F.2d
1106, 1107–1108 (CADC 1993).

															An FDA regulation gives pharmaceutical companies
exclusive rights to drug products if they contain “no active moiety
that has been approved by FDA in any other” new drug application.
21 CFR §314.108(a) (2010). Has a company created a new “active
moiety” by joining a previously approved moiety to lysine through a
non-ester covalent bond? See Actavis Elizabeth LLC v. FDA , 625 F.3d 760, 762–763 (CADC 2010); Tr. of Oral Arg. 12,
35.[ 1 ]

															Or take the facts
of Auer itself. An agency must decide whether
police captains are eligible for overtime under the Fair Labor
Standards Act. According to the agency’s regulations, employees
cannot receive overtime if they are paid on a “salary basis.” 29
CFR §541.118(a) (1996). And in deciding whether an employee is
salaried, one question is whether his pay is “subject to reduction”
based on performance. Ibid. A police department’s manual
informs its officers that their pay might be docked if they commit
a disciplinary infraction.  Does that fact alone make them
“subject to” pay deductions? Or must the department have a practice
of docking officer pay, so that the possibility of that happening
is more than theoretical? 519 U. S., at 459–462.

															In each case, interpreting the regulation
involves a choice between (or among) more than one reasonable
reading. To apply the rule to some unanticipated or unresolved
situation, the court must make a judgment call. How should it do
so?

															In answering that question, we have often
thought that a court should defer to the agency’s construction of
its own regulation. For the last 20 or so years, we have referred
to that doctrine as Auer deference, and applied it
often.[ 2 ] But the name is
something of a misnomer. Before the doctrine was called Auer deference, it was called Seminole Rock deference—for the
1945 decision in which we declared that when “the meaning of [a
regulation] is in doubt,” the agency’s interpretation “becomes of
controlling weight unless it is plainly erroneous or inconsistent
with the regulation.” 325 U. S., at 414.[ 3 ] And Seminole Rock itself was not built
on sand. Deference to administrative agencies traces back to the
late nineteenth century, and perhaps beyond. See United
States v. Eaton , 169 U.S.
331 , 343 (1898) (“The interpretation given to the regulations
by the department charged with their execution . . . is en- titled
to the greatest weight”); see Brief for Administrative Law Scholars
as Amici Curiae 5, n. 3 (collecting early cases); Brief for
AFL–CIO as Amicus Curiae 8 (same).

															We have explained Auer deference (as we
now call it) as rooted in a presumption about congressional
intent—a presumption that Congress would generally want the agency
to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review
Comm’n , 499 U.S.
144 , 151–153 (1991). Congress, we have pointed out, routinely
delegates to agencies the power to implement statutes by issuing
rules. See id., at 151. In doing so, Congress knows (how
could it not?) that regulations will sometimes contain ambiguities.
See supra, at 4. But Congress almost never explicitly
assigns responsibility to deal with that problem, either to
agencies or to courts. Hence the need to presume, one way or the
other, what Congress would want. And as between those two choices,
agencies have gotten the nod. We have adopted the
presumption—though it is always rebut- table—that “the power
authoritatively to interpret its own regulations is a component of
the agency’s delegated lawmaking powers.” Martin , 499
U. S., at 151. Or otherwise said, we have thought that when
granting rulemaking power to agencies, Congress usually intends to
give them, too, considerable latitude to interpret the ambiguous
rules they issue.

															In part, that is because the agency that
promulgated a rule is in the “better position [to] reconstruct” its
original meaning. Id., at 152. Consider that if you don’t
know what some text (say, a memo or an e-mail) means, you would
probably want to ask the person who wrote it. And for the same
reasons, we have thought, Congress would too (though the person is
here a collective actor). The agency that “wrote the regulation”
will often have direct insight into what that rule was intended to
mean. Mullins Coal Co. of Va. v. Director, Office of
Workers’ Compensation Programs , 484 U.S.
135 , 159 (1987). The drafters will know what it was supposed to
include or exclude or how it was supposed to apply to some problem.
To be sure, this justification has its limits. It does not work so
well, for example, when the agency failed to anticipate an issue in
crafting a rule ( e.g., if the agency never thought about
whether and when chest X-rays would count as a “diagnosis”). See supra, at 5. Then, the agency will not be uncovering a
specific intention; at most (though this is not nothing), it will
be offering insight into the analogous issues the drafters
considered and the purposes they designed the regulation to serve.
And the defense works yet less well when lots of time has passed
between the rule’s issuance and its interpretation—especially if
the interpretation differs from one that has come before. All that
said, the point holds good for a significant category of
“contemporaneous” readings. Lyng v. Payne , 476 U.S.
926 , 939 (1986). Want to know what a rule means? Ask its
author.

															In still greater measure, the presumption that
Congress intended Auer deference stems from the awareness
that resolving genuine regulatory ambiguities often “entail[s] the
exercise of judgment grounded in policy concerns.” Thomas
Jefferson Univ. v. Shalala , 512
U.S. 504 , 512 (1994) (internal quotation marks omitted). Return
to our TSA example. See supra, at 5. In most of their
applications, terms like “liquids” and “gels” are clear enough.
(Traveler checklist: Pretzels OK; water not.) But resolving the
uncertain issues—the truffle pâtés or olive tapenades of the
world—requires getting in the weeds of the rule’s policy: Why does
TSA ban liquids and gels in the first instance? What makes them
dangerous? Can a potential hijacker use pâté jars in the same way
as soda cans? Or take the less specialized-seeming ADA example. See supra, at 4–5. It is easy enough to know what “comparable
lines of sight” means in a movie theater—but more complicated when,
as in sports arenas, spectators sometimes stand up. How costly is
it to insist that the stadium owner take that sporadic behavior
into account, and is the viewing value received worth the added
expense? That cost-benefit calculation, too, sounds more in policy
than in law. Or finally, take the more technical “moiety” example.
See supra, at 5–6. Or maybe, don’t. If you are a judge, you
probably have no idea of what the FDA’s rule means, or whether its
policy is implicated when a previously approved moiety is connected
to lysine through a non-ester covalent bond.

															And Congress, we have thought, knows just that:
It is attuned to the comparative advantages of agencies over courts
in making such policy judgments. Agencies (unlike courts) have
“unique expertise,” often of a scientific or technical nature,
relevant to applying a regulation “to complex or changing
circumstances.” Martin , 499 U. S., at 151; see Thomas
Jefferson , 512 U. S., at 512. Agencies (unlike courts) can
conduct factual investigations, can consult with affected parties,
can consider how their experts have handled similar issues over the
long course of administering a regulatory program. See Long
Island Care at Home, Ltd. v. Coke , 551 U.S.
158 , 167–168 (2007). And agencies (again unlike courts) have
political accountability, because they are subject to the
supervision of the President, who in turn answers to the public.
See Free Enterprise Fund v. Public Company Accounting
Oversight Bd. , 561 U.S.
477 , 499 (2010); Pauley v. BethEnergy Mines,
Inc. , 501 U.S.
680 , 696 (1991) (discussing as a matter of democratic
accountability the “proper roles of the political and judicial
branches” in filling regulatory gaps). It is because of those
features that Congress, when first enacting a statute, assigns
rulemaking power to an agency and thus authorizes it to fill out
the statutory scheme. And so too, when new issues demanding new
policy calls come up within that scheme, Congress presumably wants
the same agency, rather than any court, to take the laboring
oar.

															Finally, the presumption we use reflects the
well-known benefits of uniformity in interpreting genuinely
ambiguous rules. We have noted Congress’s frequent “preference for
resolving interpretive issues by uniform administrative decision,
rather than piecemeal by litigation.” Ford Motor Credit Co. v. Milhollin , 444 U.S.
555 , 568 (1980). That preference may be strongest when the
interpretive issue arises in the context of a “complex and highly
technical regulatory program.” Thomas Jefferson , 512
U. S., at 512. After all, judges are most likely to come to
divergent conclusions when they are least likely to know what they
are doing. (Is there anything to be said for courts all over the
country trying to figure out what makes for a new active moiety?)
But the uniformity justification retains some weight even for more
accessible rules, because their language too may give rise to more
than one eminently reasonable reading. Consider Auer itself.
See supra, at 6. There, four Circuits held that police
captains were “subject to” pay deductions for disciplinary
infractions if a police manual said they were, even if the
department had never docked anyone. Two other Circuits held that
captains were “subject to” pay deductions only if the department’s
actual practice made that punishment a realistic possibility. See Auer , 519 U. S., at 460. Had the agency issued an
interpretation before all those rulings (rather than, as actually
happened, in a brief in this Court), a deference rule would have
averted most of that conflict and uncertainty. See Christopher v. SmithKline Beecham Corp. , 567 U.S.
142 , 158, n. 17 (2012) (noting for this reason that Auer deference imparts “predictability to the administrative
process” (internal quotation marks omitted)). Auer deference
thus serves to ensure consistency in federal regulatory law, for
everyone who needs to know what it requires.

															B

															But all that said, Auer deference is
not the answer to every question of interpreting an agency’s rules.
Far from it. As we explain in this section, the possibility of
deference can arise only if a regulation is genuinely ambiguous.
And when we use that term, we mean it—genuinely ambiguous, even
after a court has resorted to all the standard tools of
interpretation. Still more, not all reasonable agency constructions
of those truly ambiguous rules are entitled to deference. As just
explained, we presume that Congress intended for courts to defer to
agencies when they interpret their own ambiguous rules. See supra, at 7–11. But when the reasons for that presumption do
not apply, or countervailing reasons outweigh them, courts should
not give deference to an agency’s reading, except to the extent it
has the “power to persuade.” Christopher , 567 U. S., at 159
(quoting Skidmore v. Swift & Co. , 323 U.S.
134 , 140 (1944)). We have thus cautioned that Auer deference is just a “general rule”; it “does not apply in all
cases.” Christopher , 567 U. S., at 155. And although the
limits of Auer deference are not susceptible to any rigid
test, we have noted various circumstances in which such deference
is “unwarranted.” Ibid . In particular, that will be so when
a court concludes that an interpretation does not reflect an
agency’s authoritative, expertise-based, “fair[, or] considered
judgment.” Ibid. (quoting Auer , 519 U. S., at
462); cf. United States v. Mead Corp. , 533 U.S.
218 , 229–231 (2001) (adopting a similar approach to Chevron deference).

															We take the opportunity to restate, and somewhat
expand on, those principles here to clear up some mixed messages we
have sent. At times, this Court has applied Auer deference
without significant analysis of the underlying regulation. See, e.g., United States v. Larionoff , 431 U.S.
864 , 872 (1977) (stating that the Court “need not tarry” over
the regulation’s language given Seminole Rock ). At other
times, the Court has given Auer deference without careful
attention to the nature and context of the interpretation. See, e.g., Thorpe v. Housing Authority of Durham , 393 U.S.
268 , 276, and nn. 22–23 (1969) (deferring to an agency’s view
as expressed in letters to third parties). And in a vacuum, our
most classic formulation of the test—whether an agency’s
construction is “plainly erroneous or inconsistent with the
regulation,” Seminole Rock , 325 U. S., at 414—may
suggest a caricature of the doctrine, in which deference is
“reflexive.” Pereira v. Sessions , 585 U. S. ___,
___ (2018) (Kennedy, J., concurring) (slip op., at 2). So we cannot
deny that Kisor has a bit of grist for his claim that Auer “bestows on agencies expansive, unreviewable” authority. Brief for
Petitioner 25. But in fact Auer does no such thing: It gives
agencies their due, while also allowing—indeed, obligating—courts
to perform their reviewing and restraining functions. So before we
turn to Kisor’s specific grievances, we think it worth reinforcing
some of the limits inherent in the Auer doctrine.[ 4 ]

															First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous.
See Christensen v. Harris County , 529 U.S.
576 , 588 (2000); Seminole Rock , 325 U. S., at 414
(deferring only “if the meaning of the words used is in doubt”). If
uncertainty does not exist, there is no plausible reason for
deference. The regulation then just means what it means—and the
court must give it effect, as the court would any law. Otherwise
said, the core theory of Auer deference is that sometimes
the law runs out, and policy-laden choice is what is left over. See supra, at 9–10. But if the law gives an answer—if there is
only one reasonable construction of a regulation—then a court has
no business deferring to any other reading, no matter how much the
agency insists it would make more sense. Deference in that
circumstance would “permit the agency, under the guise of
interpreting a regulation, to create de facto a new
regulation.” See Christensen , 529 U. S., at 588. Auer does not, and indeed could not, go that far.

															And before concluding that a rule is genuinely
ambiguous, a court must exhaust all the “traditional tools” of
construction. Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc. , 467 U.S.
837 , 843, n. 9 (1984) (adopting the same approach for ambiguous
statutes). For again, only when that legal toolkit is empty and the
interpretive question still has no single right answer can a judge
conclude that it is “more [one] of policy than of law.” Pauley , 501 U. S., at 696. That means a court cannot wave
the ambiguity flag just because it found the regulation
impenetrable on first read. Agency regulations can sometimes make
the eyes glaze over. But hard interpretive conundrums, even
relating to complex rules, can often be solved. See id., at
707 (Scalia, J., dissenting) (A regulation is not ambiguous merely
because “discerning the only possible interpretation requires a
taxing inquiry”). To make that effort, a court must “carefully
consider[ ]” the text, structure, history, and purpose of a
regulation, in all the ways it would if it had no agency to fall
back on. Ibid. Doing so will resolve many seeming
ambiguities out of the box, without resort to Auer deference.

															If genuine ambiguity remains, moreover, the
agency’s reading must still be “reasonable.” Thomas
Jefferson , 512 U. S., at 515. In other words, it must come
within the zone of ambiguity the court has identified after
employing all its interpretive tools. (Note that serious
application of those tools therefore has use even when a regulation
turns out to be truly ambiguous. The text, structure, history, and
so forth at least establish the outer bounds of permissible
interpretation.) Some courts have thought (perhaps because of Seminole Rock ’s “plainly erroneous” formulation) that at
this stage of the analysis, agency constructions of rules receive
greater deference than agency constructions of statutes. See, e.g., Ohio Dept. of Medicaid v. Price , 864
F.3d 469, 477 (CA6 2017). But that is not so. Under Auer , as
under Chevron , the agency’s reading must fall “within the
bounds of reasonable interpretation.” Arlington v. FCC , 569 U.S.
290 , 296 (2013). And let there be no mistake: That is a
requirement an agency can fail.

															Still, we are not done—for not every reasonable
agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the
character and context of the agency interpretation entitles it to
controlling weight. See Christopher , 567 U. S., at 155;
see also Mead , 533 U. S., at 229–231, 236–237
(requiring an analogous though not identical inquiry for Chevron deference). As explained above, we give Auer deference because we presume, for a set of reasons relating to the
comparative attributes of courts and agencies, that Congress would
have wanted us to. See supra, at 7–11. But the
administrative realm is vast and varied, and we have understood
that such a presumption cannot always hold. Cf. Mead , 533
U. S., at 236 (“tailor[ing] deference to [the] variety” of
administrative action); Arlington , 569 U. S., at
309–310 (Breyer, J., concurring in part and concurring in judgment)
(noting that “context-specific[ ] factors” may show that
“Congress would [not] have intended the agency to resolve [some]
ambiguity”). The inquiry on this dimension does not reduce to any
exhaustive test. But we have laid out some especially important
markers for identifying when Auer deference is and is not
appropriate.

															To begin with, the regulatory interpretation
must be one actually made by the agency. In other words, it must be
the agency’s “authoritative” or “official position,” rather than
any more ad hoc statement not reflecting the agency’s views. Mead , 533 U. S., at 257–259, and n. 6 (Scalia, J.,
dissenting). That constraint follows from the logic of Auer deference—because Congress has delegated rulemaking power, and all
that typically goes with it, to the agency alone. Of course, the
requirement of “authoritative” action must recognize a reality of
bureaucratic life: Not everything the agency does comes from, or is
even in the name of, the Secretary or his chief advisers. So, for
example, we have deferred to “official staff memoranda” that were
“published in the Federal Register,” even though never approved by
the agency head. Ford Motor Credit , 444 U. S., at 566,
n. 9, 567, n. 10 (declining to “draw a radical
distinction between” agency heads and staff for Auer deference). But there are limits. The interpretation must at the
least emanate from those actors, using those vehicles, understood
to make authoritative policy in the relevant context. See, e.g.,
Paralyzed Veterans , 117 F. 3d, at 587 (refusing to
consider a “speech of a mid-level official” as an “authoritative
departmental position”); N. Y. State Dept. of Social Servs. v. Bowen , 835 F.2d 360, 365–366 (CADC 1987) (rejecting the
idea that an “informal memorandum” recounting a telephone
conversation between employees could count as an “authoritative
pronouncement”); Exelon Generation Co. v. Local 15 , Int’l Brotherhood of Elec. Workers, AFL–CIO , 676 F.3d
566, 576–578 (CA7 2012) (declining deference when the agency had
itself “disclaimed the use of regulatory guides as authoritative”).
If the interpretation does not do so, a court may not defer.

															Next, the agency’s interpretation must in some
way implicate its substantive expertise. Administrative knowledge
and experience largely “account [for] the presumption that Congress
delegates interpretive lawmaking power to the agency.” Martin , 499 U. S., at 153. So the basis for deference ebbs
when “[t]he subject matter of the [dispute is] distan[t] from the
agency’s ordinary” duties or “fall[s] within the scope of another
agency’s authority.” Arlington , 569 U. S., at 309 (opinion
of Breyer, J.). This Court indicated as much when it analyzed a
“split enforcement” scheme, in which Congress divided regulatory
power between two entities. Martin , 499 U. S., at 151. To
decide “ whose reasonable interpretation” of a rule
controlled, we “presum[ed] Congress intended to invest interpretive
power” in whichever actor was “best position[ed] to develop”
expertise about the given problem. Id. , at 149, 153. The
same idea holds good as between agencies and courts. “Generally,
agencies have a nuanced understanding of the regulations they
administer.” Brief for Respondent 33. That point is most obvious
when a rule is technical; think back to our “moiety” or “diagnosis”
examples. See supra , at 5–6. But more prosaic-seeming
questions also commonly implicate policy expertise; consider the
TSA assessing the security risks of pâté or a disabilities office
weighing the costs and benefits of an accommodation. See ibid. Once again, though, there are limits. Some
interpretive issues may fall more naturally into a judge’s
bailiwick. Take one requiring the elucidation of a simple
common-law property term, see Jicarilla Apache Tribe v. FERC , 578 F.2d 289, 292–293 (CA10 1978), or one concerning
the award of an attorney’s fee, see West Va. Highlands
Conservancy, Inc. v. Norton , 343 F.3d 239 (CA4 2003). Cf. Adams Fruit Co. v. Barrett , 494 U.S.
638 , 649–650 (1990) (declining to award Chevron deference when an agency interprets a judicial-review provision).
When the agency has no comparative expertise in resolving a
regulatory ambiguity, Congress presumably would not grant it that
authority.[ 5 ]

															Finally, an agency’s reading of a rule must
reflect “fair and considered judgment” to receive Auer deference. Christopher , 567 U. S., at 155 (quoting Auer , 519 U. S., at 462). That means, we have stated,
that a court should decline to defer to a merely “convenient
litigating position” or “ post hoc rationalizatio[n]
advanced” to “defend past agency action against attack.” Christopher , 567 U. S., at 155 (quoting Bowen v. Georgetown Univ. Hospital , 488 U.S.
204 , 213 (1988) and Auer , 519 U. S., at
462).[ 6 ] And a court may not
defer to a new interpretation, whether or not introduced in
litigation, that creates “unfair surprise” to regulated parties. Long Island Care , 551 U. S., at 170. That disruption of
expectations may occur when an agency substitutes one view of a
rule for another. We have therefore only rarely given Auer deference to an agency construction “conflict[ing] with a prior”
one. Thomas Jefferson , 512 U. S., at 515. Or the upending of
reliance may happen without such an explicit interpretive change.
This Court, for example, recently refused to defer to an
interpretation that would have imposed retroactive liability on
parties for longstanding conduct that the agency had never before
addressed. See Christopher , 567 U. S., at 155–156. Here
too the lack of “fair warning” outweighed the reasons to apply Auer. Id., at 156 (internal quotation marks
omitted).

															*  *  *

															The upshot of all this goes something as
follows. When it applies, Auer deference gives an agency
significant leeway to say what its own rules mean. In so doing, the
doctrine enables the agency to fill out the regulatory scheme
Congress has placed under its supervision. But that phrase “when it
applies” is important—because it often doesn’t. As described above,
this Court has cabined Auer ’s scope in varied and critical
ways—and in exactly that measure, has maintained a strong judicial
role in interpreting rules. What emerges is a deference doctrine
not quite so tame as some might hope, but not nearly so menacing as
they might fear.

															III

															That brings us to the lone question presented
here—whether we should abandon the longstanding doctrine just
described. In contending that we should, Kisor raises statutory,
policy, and constitutional claims (in that order). But he faces an
uphill climb. He must first convince us that Auer deference
is wrong. And even then, he must overcome stare decisis —the
special care we take to preserve our precedents. In the event,
Kisor fails at the first step: None of his arguments provide good
reason to doubt Auer deference. And even if that were not
so, Kisor does not offer the kind of special justification needed
to overrule Auer, and Seminole Rock, and all our many
other decisions deferring to reasonable agency constructions of
ambiguous rules.

															A

															Kisor first attacks Auer as
inconsistent with the judicial review provision of the
Administrative Procedure Act (APA). See 5 U. S. C. §706.
As Kisor notes, Congress enacted the APA in 1946—the year after Seminole Rock —to serve as “the fundamental charter of the
administrative state.” Brief for Petitioner 26 (internal quotation
marks omitted). Section 706 of the Act, governing judicial review
of agency action, states (among other things) that reviewing courts
shall “determine the meaning or applicability of the terms of an
agency action” (including a regulation). According to Kisor, Auer violates that edict by thwarting “meaningful judicial
review” of agency rules. Brief for Petitioner 29. Courts under Auer , he asserts (now in the language of Section 706),
“abdicate their office of determining the meaning” of a regulation. Id., at 27 (internal quotation marks omitted).

															To begin with, that argument ignores the many
ways, discussed above, that courts exercise independent review over
the meaning of agency rules. See supra, at 13–18. As we have
explained, a court must apply all traditional methods of
interpretation to any rule, and must enforce the plain meaning
those methods uncover. There can be no thought of deference unless,
after performing that thoroughgoing review, the regulation remains
genuinely susceptible to multiple reasonable meanings and the
agency’s interpretation lines up with one of them. And even if that
is the case, courts must on their own determine whether the nature
or context of the agency’s construction reverses the usual
presumption of deference. Most notably, a court must consider
whether the interpretation is authoritative, expertise-based,
considered, and fair to regulated parties. All of that figures as
“meaningful judicial review.” Brief for Petitioner 29.

															And even when a court defers to a regulatory
reading, it acts consistently with Section 706. That provision does
not specify the standard of review a court should use in
“determin[ing] the meaning” of an ambiguous rule. 5
U. S. C. §706. One possibility, as Kisor says, is to
review the issue de novo . But another is to review the
agency’s reading for reasonableness. To see the point, assume that
a regulatory (say, an employment) statute expressly instructed
courts to apply Auer deference when reviewing an agency’s
interpretations of its ambiguous rules. Nothing in that statute
would conflict with Section 706. Instead, the employment law would
simply make clear how a court is to “determine the meaning”
of such a rule—by deferring to an agency’s reasonable reading. Ibid . Of course, that is not the world we know: Most
substantive statutes do not say anything about Auer deference, one way or the other. But for all the reasons spelled
out above, we have long presumed (subject always to rebuttal) that
the Congress delegating regulatory authority to an agency intends
as well to give that agency considerable latitude to construe its
ambiguous rules. See supra, at 7–11. And that presumption
operates just like the hypothesized statute above. Because of it,
once again, courts do not violate Section 706 by applying Auer. To the contrary, they fulfill their duty to “determine
the meaning” of a rule precisely by deferring to the agency’s
reasonable reading. See Sunstein & Vermeule, The Unbearable
Rightness of Auer , 84 U. Chi. L. Rev. 297, 306 (2017) (If
Congress intends “that the meaning of a regulation turns on the
agency’s interpretation of its meaning,” then courts comply with
Section 706’s command to “ ‘determine the meaning’ [of the
regulation] by deferring to that view”); cf. Arlington , 569
U. S., at 317 (Roberts, C. J., dissenting) (similarly
addressing why Chevron deference comports with Section 706).
Section 706 and Auer thus go hand in hand.

															That is especially so given the practice of
judicial review at the time of the APA’s enactment. Section 706 was
understood when enacted to “restate[] the present law as to the
scope of judicial review.” See Dept. of Justice, Attorney General’s
Manual on the Administrative Procedure Act 108 (1947); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc. , 435 U.S.
519 , 546 (1978) (noting that this Court gives some deference to
the Manual “because of the role played by the Department of Justice
in drafting the legislation”). We have thus interpreted the APA not
to “significantly alter the common law of judicial review of agency
action.” Heckler v. Chaney , 470
U.S. 821 , 832 (1985) (internal quotation marks omitted). That
pre-APA common law included Seminole Rock itself (decided
the year before) along with prior decisions foretelling that
ruling. See supra, at 7. Even assume that the deference
regime laid out in those cases had not yet fully taken hold. At a
minimum, nothing in the law of that era required all judicial
review of agency interpretations to be de novo . Cf.
Manning, Constitutional Structure and Judicial Deference to Agency
Interpretations of Agency Rules, 96 Colum. L. Rev. 612,
635–636 (1996) (arguing that courts before the APA used “flexible,
common law methods to review administrative action”). And so
nothing suggests that Section 706 imposes that requirement. Or
otherwise said: If Section 706 did not change the law of judicial
review (as we have long recognized), then it did not proscribe a
deferential standard then known and in use.

															Kisor next claims that Auer circumvents
the APA’s rulemaking requirements. Section 553, as Kisor notes,
mandates that an agency use notice-and-comment procedures before
issuing legislative rules. See 5 U. S. C. §§553(b), (c).
But the section allows agencies to issue “interpret[ive]” rules
without notice and comment. See §553(b)(A). A key feature of those
rules is that (unlike legislative rules) they are not supposed to
“have the force and effect of law”—or, otherwise said, to bind
private parties. Perez v. Mortgage Bankers Assn. , 575
U.S. 92, ___ (2015) (slip op., at 3) (internal quotation marks
omitted). Instead, interpretive rules are meant only to “advise the
public” of how the agency understands, and is likely to apply, its
binding statutes and legislative rules. Ibid. But consider,
Kisor argues, what happens when a court gives Auer deference
to an interpretive rule. The result, he asserts, is to make a rule
that has never gone through notice and comment binding on the
public. See Brief for Petitioner 21, 29. Or put another way, the
interpretive rule ends up having the “force and effect of law”
without ever paying the procedural cost. Mortgage Bankers ,
575 U. S., at ___ (slip op., at 3).

															But this Court rejected the identical argument
just a few years ago, and for good reason. In Mortgage
Bankers , we held that interpretive rules, even when given Auer deference, do not have the force of law. See 575
U. S., at ___, and n. 4 (slip op., at 10, and n. 4).
An interpretive rule itself never forms “the basis for an
enforcement action”—because, as just noted, such a rule does not
impose any “legally binding requirements” on private parties. National Min. Assn. v. McCarthy , 758 F.3d 243, 251
(CADC 2014). An enforcement action must instead rely on a
legislative rule, which (to be valid) must go through notice and
comment. And in all the ways discussed above, the meaning of a
legislative rule remains in the hands of courts, even if they
sometimes divine that meaning by looking to the agency’s
interpretation. See supra, at 13–18. Courts first decide
whether the rule is clear; if it is not, whether the agency’s
reading falls within its zone of ambiguity; and even if the reading
does so, whether it should receive deference. In short, courts
retain the final authority to approve—or not—the agency’s reading
of a notice-and-comment rule. See Mortgage Bankers, 575
U. S., at ___, n. 4 (slip op., at 10, n. 4) (“[I]t
is the court that ultimately decides whether a given regulation
means what the agency says”). No binding of anyone occurs merely by
the agency’s say-so.

															And indeed, a court deciding whether to give Auer deference must heed the same procedural values as
Section 553 reflects. Remember that a court may defer to only an
agency’s authoritative and considered judgments. See supra, at 15–18. No ad hoc statements or post hoc rationalizations need apply. And recall too that deference turns on
whether an agency’s interpretation creates unfair surprise or
upsets reliance interests. See supra, at 18. So an agency
has a strong incentive to circulate its interpretations early and
widely. In such ways, the doctrine of Auer deference
reinforces, rather than undermines, the ideas of fairness and
informed decisionmaking at the core of the APA.

															To supplement his two APA arguments, Kisor turns
to policy, leaning on a familiar claim about the incentives Auer creates. According to Kisor, Auer encourages
agencies to issue vague and open-ended regulations, confident that
they can later impose whatever interpretation of those rules they
prefer. See Brief for Petitioner 37–41. That argument received its
fullest elaboration in a widely respected law review article
pre-dating Auer . See Manning, 96 Colum. L. Rev., at
654–669. More recently, the concern about such self-delegation has
appeared in opinions from this Court, starting with several from
Justice Scalia calling for Auer ’s reconsideration. See, e.g., Christopher, 567 U. S., at 158 (citing Manning, supra, at 655–668); Decker v. Northwest
Environmental Defense Center , 568 U.S.
597 , 620–621 (2013) (Scalia, J., concurring in part and
dissenting in part) (citing Manning, supra ); Talk
America, Inc. v. Michigan Bell Telephone Co. , 564 U.S.
50 , 69 (2011) (Scalia, J., concurring) (principally relying on
Manning, supra ).

															But the claim has notable weaknesses, empirical
and theoretical alike. First, it does not survive an encounter with
experience. No real evidence—indeed, scarcely an anecdote—backs up
the assertion. As two noted scholars (one of whom reviewed
thousands of rules during four years of government service) have
written: “[W]e are unaware of, and no one has pointed to, any
regulation in American history that, because of Auer , was
designed vaguely.” Sunstein & Vermeule, 84 U. Chi.
L. Rev., at 308. And even the argument’s theoretical allure
dissipates upon reflection. For strong (almost surely stronger)
incentives and pressures cut in the opposite direction.
“[R]egulators want their regulations to be effective, and clarity
promotes compliance.” Brief for Administrative Law Scholars as Amici Curiae 18–19. Too, regulated parties often push for
precision from an agency, so that they know what they can and
cannot do. And ambiguities in rules pose risks to the long-run
survival of agency pol- icy. Vagueness increases the chance of
adverse judicial rulings. And it enables future administrations,
with different views, to reinterpret the rules to their own liking.
Add all of that up and Kisor’s ungrounded theory of incentives
contributes nothing to the case against Auer .

															Finally, Kisor goes big, asserting (though
fleetingly) that Auer deference violates
“separation-of-powers principles.” See Brief for Petitioner 43. In
his view, those principles prohibit “vest[ing] in a single branch
the law-making and law-interpreting functions.” Id., at 45.
If that objection is to agencies’ usurping the interpretive role of
courts, this opinion has already met it head-on. Properly
understood and applied, Auer does no such thing. In all the
ways we have described, courts retain a firm grip on the
interpretive function. See supra, at 13–18; Mortgage
Bankers, 575 U. S., at ___, n. 4 (slip op., at 10,
n. 4). If Kisor’s objection is instead to the supposed
commingling of functions (that is, the legislative and judicial)
within an agency, this Court has answered it often before. See, e.g., Withrow v. Larkin , 421 U.S.
35 , 54 (1975) (permitting such a combination of functions); FTC v. Cement Institute , 333
U.S. 683 , 702 (1948) (same). That sort of mixing is endemic in
agencies, and has been “since the beginning of the Republic.” Arlington , 569 U. S., at 304–305, n. 4. It does
not violate the separation of powers, we have explained, because
even when agency “activities take ‘legislative’ and ‘judicial’
forms,” they continue to be “exercises of[ ] the ‘executive
Power’ ”—or otherwise said, ways of executing a statutory
plan. Ibid. (quoting U. S. Const., Art. II, §1, cl. 1).
So Kisor’s last argument to dispatch Auer deference fails as
roundly as the rest.

															B

															If all that were not enough, stare
decisis cuts strongly against Kisor’s position. “Overruling
precedent is never a small matter.” Kimble v. Marvel
Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op.,
at 7). Adherence to precedent is “a foundation stone of the rule of
law.” Michigan v. Bay Mills Indian Community , 572
U.S. 782, 798 (2014). “[I]t promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee , 501 U.S.
808 , 827 (1991). To be sure, stare decisis is “not an
inexorable command.” Id., at 828. But any departure from the
doctrine demands “special justification”—something more than “an
argument that the precedent was wrongly decided.” Halliburton
Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266
(2014).

															And that is even more than usually so in the
circumstances here. First, Kisor asks us to overrule not a single
case, but a “long line of precedents”—each one reaffirming the rest
and going back 75 years or more. Bay Mills , 572 U. S.,
at 798; see nn. 2, 3, supra . This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower
courts have done so thousands of times. Deference to reasonable
agency interpretations of ambiguous rules pervades the whole corpus
of administrative law. Second, because that is so, abandoning Auer deference would cast doubt on many settled
constructions of rules. As Kisor acknowledged at oral argument, a
decision in his favor would allow relitigation of any decision
based on Auer , forcing courts to “wrestle [with] whether or
not Auer ” had actually made a difference. Tr. of Oral Arg.
30; see id., at 47 (Solicitor General agreeing that “every
single regulation that’s currently on the books whose
interpretation has been established under Seminole Rock now
[would have] to be relitigated anew”). It is the rare overruling
that introduces so much instability into so many areas of law, all
in one blow.

															And third, even if we are wrong about Auer , “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union , 491 U.S.
164 , 172–173 (1989) (stating that when that is so,
“[c]onsiderations of stare decisis have special force”). In
a constitutional case, only we can correct our error. But that is
not so here. Our deference decisions are “balls tossed into
Congress’s court, for acceptance or not as that branch elects.” Kimble , 576 U. S., at ___ (slip op., at 8). And so far,
at least, Congress has chosen acceptance. It could amend the APA or
any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead,
for approaching a century, it has let our deference regime work
side-by-side with both the APA and the many statutes delegating
rulemaking power to agencies. It has done so even after we made
clear that our deference decisions reflect a presumption about
congressional intent. See Martin , 499 U. S., at 151; supra , at 7–8. And it has done so even after Members of this
Court began to raise questions about the doctrine. See, e.g.,
Talk America , 564 U. S., at 67–69 (Scalia, J.,
concurring). Given that his- tory—and Congress’s continuing ability
to take up Kisor’s arguments—we would need a particularly “special
justification” to now reverse Auer. Kisor offers nothing of that ilk. Nearly all his
arguments about abandoning precedent are variants of his merits
claims. We hear again, if in different parts of his briefs, that Auer deference frustrates “the policies embodied in the APA”
and violates the separation of powers. Reply Brief 13, and n. 5;
Brief for Petitioner 47–48. More generally, we learn that Seminole Rock was “wrong on its own terms” and “badly
reasoned.” Id., at 47 (internal quotation marks omitted). Of
course, it is good—and important—for our opinions to be right and
well-reasoned. But that is not the test for overturning precedent.
Kisor does not claim that Auer deference is “unworkable,” a
traditional basis for overruling a case. Patterson , 491
U. S., at 173. Nor does he point to changes in legal rules
that make Auer a “doctrinal dinosaur.” Kimble , 576
U. S., at ___ (slip op., at 11). All he can muster is that
“[t]he administrative state has evolved substantially since 1945.”
Brief for Petitioner 53. We do not doubt the point (al- though we
note that Auer and other key deference decisions came along
after most of that evolution took place). Still more, we agree with
Kisor that administrative law doctrines must take account of the
far-reaching influence of agencies and the opportunities such power
carries for abuse. That is one reason we have taken care today to
reinforce the limits of Auer deference, and to emphasize the
critical role courts retain in interpreting rules. But it is no
answer to the growth of agencies for courts to take over their
expertise-based, policymaking functions. Who knows? Maybe in 1945,
the FDA was not thinking about “active moieties.” See supra, at 5–6. But still, today—just as Seminole Rock and Auer held—it should have leeway to say what that term
means.

															IV

															With that, we can finally return to Kisor’s
own case. You may remember that his retroactive benefits depend on
the meaning of the term “relevant” records in a VA regulation. See supra, at 2–3. The Board of Veterans’ Appeals, through a
single judge’s opinion, understood records to be relevant only if
they relate to the basis of the VA’s initial denial of benefits. By
contrast, Kisor argued that records are relevant if they go to any
benefits criterion, even one that was uncontested. The Federal
Circuit upheld the Board’s interpretation based on Auer deference.

															Applying the principles outlined in this
opinion, we hold that a redo is necessary for two reasons. First,
the Federal Circuit jumped the gun in declaring the regulation
ambiguous. We have insisted that a court bring all its interpretive
tools to bear before finding that to be so. See supra, at
13–14. It is not enough to casually remark, as the court did here,
that “[b]oth parties insist that the plain regulatory language
supports their case, and neither party’s position strikes us as
unreasonable.” 869 F. 3d, at 1368; see supra, at 13–14.
Rather, the court must make a conscientious effort to determine,
based on indicia like text, structure, history, and purpose,
whether the regulation really has more than one reasonable meaning.
The Solicitor General argued in this Court that the Board’s reading
is the only reasonable one. See Brief for Respondent 49–50. Perhaps
Kisor will make the converse claim below. Before even considering
deference, the court must seriously think through those
positions.

															And second, the Federal Circuit assumed too fast
that Auer deference should apply in the event of genuine
ambiguity. As we have explained, that is not always true. A court
must assess whether the interpretation is of the sort that Congress
would want to receive deference. See supra, at 15–18. The
Solicitor General suggested at oral argument that the answer in
this case might be no. He explained that all 100 or so members of
the VA Board act individually (rather than in panels) and that
their roughly 80,000 annual decisions have no “precedential value.”
Tr. of Oral Arg. 64. He thus questioned whether a Board member’s
ruling “reflects the considered judgment of the agency as a whole.” Ibid. ; cf. Mead , 533 U. S., at 233 (declining to
give Chevron deference to rulings “being churned out at a
rate of 10,000 a year at an agency’s 46 scattered offices”). We do
not know what position the Government will take on that issue
below. But the questions the Solicitor General raised are exactly
the kind the court must consider in deciding whether to award Auer deference to the Board’s interpretation.

															We accordingly vacate the judgment below and
remand the case for further proceedings.

															It is so ordered. Notes 1 In case you’re wondering,
the regulatory definition of active moiety is “[t]he molecule or
ion, excluding those appended portions of the molecule that cause
the drug to be an ester, salt (including a salt with hydrogen or
coordination bonds), or the noncovalent derivative (such as a
complex, chelate, or clathrate) of the molecule, responsible for
the physiological or pharmacological action of the drug substance.”
21 CFR §314.3(b) (2018). 2 See, e.g. , PLIVA, Inc. v. Mensing , 564 U.S.
604 , 613 (2011); Chase Bank USA, N. A. v. McCoy , 562 U.S.
195 , 208–210 (2011); Coeur Alaska, Inc. v. Southeast
Alaska Conservation Council , 557 U.S.
261 , 274–275 (2009); Riegel v. Medtronic, Inc. , 552 U.S.
312 , 328 (2008); Long Island Care at Home, Ltd. v. Coke , 551 U.S.
158 , 171 (2007); Washington State Dept. of Social and Health
Servs. v. Guardianship Estate of Keffeler , 537 U.S.
371 , 387–388 (2003). 3 Our (pre- Auer )
decisions applying Seminole Rock deference are legion. See, e.g. , Shalala v. Guernsey Memorial Hospital , 514 U.S.
87 , 94–95 (1995); Thomas Jefferson Univ . v. Shalala , 512 U.S.
504 , 512 (1994); Stinson v. United States , 508 U.S.
36 , 44–45 (1993); INS v. National Center for
Immigrants’ Rights, Inc. , 502 U.S.
183 , 189–190 (1991); Robertson v. Methow Valley
Citizens Council , 490 U.S.
332 , 358–359 (1989); Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs , 484 U.S.
135 , 159 (1987); Lyng v. Payne , 476 U.S.
926 , 939 (1986); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta , 458 U.S.
141 , 158, n. 13 (1982); Blanding v. DuBose , 454 U.S.
393 , 401 (1982) ( per curiam ); Ford Motor Credit
Co. v. Milhollin , 444 U.S.
555 , 566 (1980); United States v. Larionoff , 431 U.S.
864 , 872 (1977); Northern Indiana Public Service Co. v. Porter County Chapter of Izaak Walton League of America,
Inc. , 423 U.S.
12 , 15 (1975) ( per curiam ); Ehlert v. United
States , 402 U.S.
99 , 105 (1971); INS v. Stanisic , 395 U.S.
62 , 72 (1969); Thorpe v. Housing Authority of
Durham , 393 U.S.
268 , 276 (1969); Udall v. Tallman , 380 U.S.
1 , 16–17 (1965). 4 The proper understanding
of the scope and limits of the Auer doctrine is, of course,
not set out in any of the opinions that concur only in the
judgment. 5 For a similar reason,
this Court has denied Auer deference when an agency
interprets a rule that parrots the statutory text. See Gonzales v. Oregon , 546 U.S.
243 , 257 (2006). An agency, we explained, gets no “special
authority to interpret its own words when, instead of using its
expertise and experience to formulate a regulation, it has elected
merely to paraphrase the statutory language.” Ibid. 6 The general rule, then,
is not to give deference to agency interpretations advanced for the
first time in legal briefs. See Bowen , 488 U. S., at
212–213. But we have not entirely foreclosed that practice. Auer itself deferred to a new regulatory interpretation
presented in an amicus curiae brief in this Court. There,
the agency was not a party to the litigation, and had expressed its
views only in response to the Court’s request. “[I]n the
circumstances,” the Court explained, “[t]here [was] simply no
reason to suspect that the interpretation [did] not reflect the
agency’s fair and considered judgment on the matter in question.” Auer , 519 U. S., at 462. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–15

															_________________

															james l. kisor, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 26, 2019]

															Chief Justice Roberts, concurring in part.

															I join Parts I, II–B, III–B, and IV of the
Court’s opinion. We took this case to consider whether to overrule Auer v. Robbins , 519 U.S.
452 (1997), and Bowles v. Seminole Rock & Sand
Co. , 325 U.S.
410 (1945). For the reasons the Court discusses in Part III–B,
I agree that overruling those precedents is not warranted. I also
agree with the Court’s treatment in Part II–B of the bounds of Auer deference.

															I write separately to suggest that the distance
between the majority and Justice Gorsuch is not as great as it may
initially appear. The majority catalogs the prerequisites for, and
limitations on, Auer deference: The underlying regulation
must be genuinely ambiguous; the agency’s interpretation must be
reasonable and must reflect its authoritative, expertise-based, and
fair and considered judgment; and the agency must take account of
reliance interests and avoid unfair surprise. Justice Gorsuch,
meanwhile, lists the reasons that a court might be persuaded to
adopt an agency’s interpretation of its own regulation: The agency
thoroughly considered the problem, offered a valid rationale,
brought its expertise to bear, and interpreted the regulation in a
manner consistent with earlier and later pronouncements. Accounting
for variations in verbal formulation, those lists have much in
common.

															That is not to say that Auer deference is
just the same as the power of persuasion discussed in Skidmore v. Swift & Co. , 323
U.S. 134 (1944); there is a difference between holding that a
court ought to be persuaded by an agency’s interpretation and
holding that it should defer to that interpretation under certain
conditions. But it is to say that the cases in which Auer deference is warranted largely overlap with the cases in which it
would be unreasonable for a court not to be persuaded by an
agency’s interpre- tation of its own regulation.

															One further point: Issues surrounding judicial
deference to agency interpretations of their own regulations are
distinct from those raised in connection with judicial deference to
agency interpretations of statutes enacted by Congress. See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc. , 467 U.S.
837 (1984). I do not re- gard the Court’s decision today to
touch upon the latter question. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–15

															_________________

															james l. kisor, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 26, 2019]

															Justice Gorsuch, with whom Justice Thomas
joins, with whom Justice Kavanaugh joins as to Parts I, II, III,
IV, and V, and with whom Justice Alito joins as to Parts I, II, and
III, concurring in the judgment.

															It should have been easy for the Court to say
goodbye to Auer v. Robbins .[ 1 ] In disputes involving the relationship between the
government and the people, Auer requires judges to accept an
executive agency’s interpretation of its own regulations even when
that interpretation doesn’t represent the best and fairest reading.
This rule creates a “systematic judicial bias in favor of the
federal government, the most powerful of parties, and against
everyone else.”[ 2 ] Nor is Auer ’s biased rule the product of some congressional mandate
we are powerless to correct: This Court invented it, almost by
accident and without any meaningful effort to reconcile it with the
Administrative Procedure Act or the Constitution. A legion of
academics, lower court judges, and Members of this Court—even Auer ’s author—has called on us to abandon Auer . Yet
today a bare majority flinches, and Auer lives on.

															Still, today’s decision is more a stay of
execution than a pardon. The Court cannot muster even five votes to
say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis . And yet, far from
standing by that precedent, the majority proceeds to impose so many
new and nebulous qualifications and limitations on Auer that
The Chief Justice claims to see little practical difference between
keeping it on life support in this way and overruling it entirely.
So the doctrine emerges maimed and enfeebled—in truth,
zombified.

															Respectfully, we owe our colleagues on the lower
courts more candid and useful guidance than this. And judges owe
the people who come before them nothing less than a fair contest,
where every party has an equal chance to persuade the court of its
interpretation of the law’s demands. One can hope that The Chief
Justice is right, and that whether we formally overrule Auer or merely neuter it, the results in most cases will prove the same.
But means, not just ends, matter, and retaining even this
debilitated version of Auer threatens to force litigants and
lower courts to jump through needless and perplexing new hoops and
in the process deny the people the independent judicial decisions
they deserve. All to what end? So that we may pretend to
abide stare decisis ?

															Consider this case. Mr. Kisor is a Marine who
lost out on benefits for post-traumatic stress disorder when the
court of appeals deferred to a regulatory interpretation advanced
by the Department of Veterans Affairs. 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 . Respectfully, I would stop this business of
making up excuses for judges to abdicate their job of interpreting
the law, and simply allow the court of appeals to afford Mr. Kisor
its best independent judgment of the law’s meaning.

															The Court’s failure to be done with Auer ,
and its decision to adorn Auer with so many new and
ambiguous limitations, all but guarantees we will have to pass this
way again. When that day comes, I hope this Court will find the
nerve it lacks today and inter Auer at last. Until then, I
hope that our judicial colleagues on other courts will take courage
from today’s ruling and realize that it has transformed Auer into a paper tiger.

															I. How We Got Here

															Where did Auer come from? Not from the
Constitution, some ancient common law tradition, or even a modern
statute. Instead, it began as an unexplained aside in a decision
about emergency price controls at the height of the Second World
War. Even then, the dictum sat on the shelf, little noticed, for
years. Only in the last few decades of the 20th century did lawyers
and courts really begin to dust it off and shape it into the
reflexive rule of deference to regulatory agencies we know today.
And they did so without ever pausing to consider whether a rule
like that could be legally justified or even made sense. Auer is really little more than an accident.

															A

															Before the mid-20th century, few federal
agencies engaged in extensive rulemaking, and those that did rarely
sought deference for their regulatory interpretations.[ 3 ] But when the question arose, this
Court did not hesitate to say that judges reviewing administrative
action should decide all questions of law, including questions
concerning the meaning of regulations. As Justice Brandeis put it,
“[t]he inexorable safeguard which the due process clause assures is
. . . that there will be opportunity for a court to
determine whether the applicable rules of law . . . were
observed.”[ 4 ] Unsurprisingly,
the government’s early, longstanding, and consistent interpretation
of a statute, regulation, or other legal instrument could count as
powerful evidence of its original public meaning.[ 5 ] But courts respected executive
interpretations only because and to the extent “they embodied
understandings made roughly contemporaneously with . . .
enactment and stably maintained and practiced since that time,” not
“because they were executive as such.”[ 6 ]

															Writing for four Members of the Court, Justice
Kagan suggests that Auer ’s very different approach to the
interpretation of agency regulations was foreshadowed as early as
this Court’s 1898 decision in United States v. Eaton .[ 7 ] Ante ,
at 7. But this is mistaken. The question in that case was whether
Mr. Eaton’s appointment as temporary vice-consul to Siam was
consistent with State Department regulations. After several pages
of careful and independent legal analysis, the Court held that the
regulations did authorize the appointment. That conclusion, the
Court explained, was “rendered necessary by a consideration of the
text.”[ 8 ] Only after reaching this conclusion did the Court observe that the State
Department had previously adopted the same construction, noting
along the way that the Department’s views were “entitled to the
greatest weight” and that the Court saw “no reason in this case to
doubt [their] correctness.”[ 9 ] Eaton thus simply followed the well-worn path of
acknowledging that an agency’s interpretation of a regulation can
supply evidence of its meaning.[ 10 ] Nowhere did the Court even hint that it would have
deferred to the State Department’s views about the meaning of the
law if its own independent textual analysis had not led it to the
same conclusion.

															All this is borne out by the Court’s later
teachings in Skidmore v. Swift & Co. in
1944.[ 11 ] The question there
was whether the time overnight employees spent waiting to respond
to fire alarms could amount to compensable overtime under the Fair
Labor Standards Act. The lower courts had held as a matter of law
that it could not. In an opinion by Justice Jackson, this Court
reversed. The Court first held, based on its own independent
analysis, that “no principle of law found either in the statute or
in Court decisions precludes waiting time from also being working
time.”[ 12 ] Only then did the
Court consider “what, if any, deference courts should pay” to the
views of the Administrator of the Labor Department’s Wage and Hour
Division.[ 13 ] And on that
question the Court reaffirmed the traditional rule that an agency’s
interpretation of the law is “not controlling upon the courts” and
is entitled only to a weight proportional to “the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.”[ 14 ] At the time, the influential administrative law
scholar Kenneth Culp Davis considered this “[a]n entirely reliable
statement” of the law.[ 15 ]

															B

															In truth, the seeds of the Auer doctrine were first planted only in 1945, in Bowles v. Seminole Rock & Sand Co. [ 16 ] That case involved regulations issued by the Office
of Price Administration (OPA), which Congress had tasked with
stabilizing the national economy during the Second World War
through the use of emergency price controls. It was in that context
that the Court declared—for the first time and without citing any
authority—that “if the meaning of [the regulation were] in doubt,”
the agency’s interpretation would merit “controlling weight unless
it is plainly erroneous or inconsistent with the
regulation.”[ 17 ]

															Yet even then it was far from clear how much
weight the Court really placed on the agency’s interpretation. As
it had in Eaton , the Court in Seminole Rock began
with an extended discussion of “the plain words of the regulation,”
which led it to conclude that the text “clearly” supported the
government’s position.[ 18 ]
Only after reaching that conclusion based on its own independent
analysis did the Court proceed to add that “[a]ny doubts
. . . are removed by reference to the administrative
construction.”[ 19 ]

															So confused was all this that readers at the
time didn’t perceive Seminole Rock ’s dictum as changing
anything. Professor Davis observed that the Court’s discussion
about giving “controlling weight” to the agency’s interpretation
was an unexplained aside that made no difference to the case’s
outcome.[ 20 ] The dictum,
too, was readily explained as reflecting the unusual factual
context in which the case arose, involving an emergency government
program created to deal with “unique circumstances of war and
economic depression.”[ 21 ]
And the Court decided Seminole Rock the same Term it issued Skidmore , where it reaffirmed the traditional rule that an
agency’s views about the law may persuade a court but can
never control its judgment. In fact, the Court in Seminole Rock was careful to note that the OPA
interpretation before it bore many of the characteristics Skidmore would have recognized as increasing its persuasive
force: It had been announced concurrently with the regulation,
disseminated widely to the regulated community, and adhered to
consistently by the agency.[ 22 ]

															No wonder, then, that for many years after the
decision, courts “connected Seminole Rock more closely with
the deference framework . . . under Skidmore ” and
generally engaged in a Skidmore -type analysis, accepting the
agency’s interpretation “only after independently examining the
regulation and concluding that the agency interpretation was
sound.”[ 23 ] If Seminole
Rock ’s “controlling weight” dictum was afforded any force, it
was usually only in the price control context; even then it was
ordinarily extended only to “official” agency interpretations that
were published contemporaneously with the regulation and widely
distributed.[ 24 ] The Fourth
Circuit exemplified the early understanding of Seminole Rock when it observed—citing both Seminole Rock and Skidmore —that “under settled principles” an official agency
interpretation in an opinion letter was entitled only to
“respectful consideration.”[ 25 ] The letter, the court stressed, did not “have the
effect of law,” and “[i]t would be absurd to hold that the courts
must subordinate their judgment as to the meaning of a
. . . regulation to the mere unsupported opinion of an
associate counsel in an administrative department.”[ 26 ]

															C

															This Court did not cite Seminole Rock ’s
“controlling weight” dictum again until 1965, in Udall v. Tallman .[ 27 ] And
though Tallman “did very little to advance the
jurisprudential understanding of Seminole Rock ,” it
certainly helped fuel the expansion of so-called “ Seminole
Rock deference.”[ 28 ]
From the 1960s on, this Court and lower courts began to cite the Seminole Rock dictum with increasing frequency and in a
wider variety of circumstances, but still without much explanation.
They also increasingly divorced Seminole Rock from Skidmore .[ 29 ] Auer represents the apotheosis of this
line of cases. In the name of what some now call the Auer doctrine, courts have in recent years “mechanically applied and
reflexively treated” Seminole Rock ’s dictum “as a constraint
upon the careful inquiry that one might ordinarily expect of courts
engaged in textual analysis.”[ 30 ] Under Auer , judges are forced to subordinate
their own views about what the law means to those of a political
actor, one who may even be a party to the litigation before the
court. After all, if the court agrees that the agency’s reading is
the best one, Auer does no real work; the doctrine matters
only when a court would conclude that the agency’s interpretation
is not the best or fairest reading of the regulation.

															To be sure, Justice Kagan paints a very
different picture of Auer , asking us to imagine it riding to
the rescue only in cases where the scales of justice are evenly
balanced between two equally persuasive readings. But that’s a
fantasy: “If nature knows of such equipoise in legal arguments, the
courts at least do not.”[ 31 ]
In the real world the judge uses his traditional interpretive
toolkit, full of canons and tiebreaking rules, to reach a decision
about the best and fairest reading of the law. Of course, there are
close cases and reasonable judges will sometimes disagree. But
every day, in courts throughout this country, judges manage with
these traditional tools to reach conclusions about the meaning of
statutes, rules of procedure, contracts, and the Constitution. Yet
when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the
agency’s interpretation as controlling even when it is “not
. . . the best one.”[ 32 ]

															If that were not troubling enough, Auer has also become “a doctrine of uncertain scope and
application.”[ 33 ] This Court
has never offered meaningful guidance on how to decide whether the
agency’s reading is “reasonable” enough to demand judicial
deference—and lower courts have drawn that line in wildly different
places.[ 34 ] Deepening the
confusion, this Court and lower courts have, over time, tried to
soften Auer ’s rigidity by declaring that it “might” not
apply in some ill-defined circumstances, such as when the agency’s
interpretation “conflicts with a prior interpretation” or reflects
a “convenient litigating position” or a “ post hoc rationalization” for past agency action.[ 35 ] All this has resulted in “widespread confusion”
about when and how to apply Auer deference.[ 36 ]

															In light of Auer ’s many problems, it
should come as no surprise that several Members of this
Court,[ 37 ] along with a
great many lower court judges[ 38 ] and members of the legal academy,[ 39 ] have questioned Auer ’s validity
and pleaded with this Court to reconsider it.

															D

															That’s where things stood when James Kisor
asked the Department of Veterans Affairs to reopen his disability
benefits claim. Mr. Kisor served as a United States Marine from
1962 through 1966 and saw combat in Vietnam. In the early 1980s, a
VA counselor observed that Mr. Kisor was battling depression and
suicidal thoughts and suggested he might be suffering from
post-traumatic stress disorder. In light of this, Mr. Kisor filed a
claim for disability benefits in 1982. But, in the end, the VA
denied the claim.

															In 2006, Mr. Kisor sought to reopen the matter.
In connection with that request, he presented new evidence,
including a psychiatrist’s report diagnosing him with PTSD and
additional records documenting his service in Vietnam. The VA
reopened Mr. Kisor’s claim and granted him disability benefits
effective June 5, 2006, the date he had submitted his new request.
Mr. Kisor argued that a VA regulation entitled him to an earlier
effective date for disability benefits, one tracing back to his
original submission in 1982. But the Board of Veterans Appeals
concluded that the applicable regulation didn’t authorize that
relief.

															Mr. Kisor appealed the Board’s ruling all the
way to the Federal Circuit, arguing that the Board had
misinterpreted the relevant regulation. The Federal Circuit
affirmed. Relying on the Auer doctrine, the court held that
it had no choice but to treat the Board’s interpretation as
“ ‘controlling’ ” unless that interpretation was
“ ‘plainly erroneous or inconsistent with the
regulatio[n].’ ”[ 40 ]
Without even trying to determine who had the better reading of the
regulation, the Board or Mr. Kisor, the court declared that “[t]he
Board’s interpretation does not strike us as either plainly
erroneous or inconsistent with the VA’s regulatory
framework.”[ 41 ] Case
closed.

															Mr. Kisor sought and was denied rehearing en
banc. Three judges dissented and joined those who have questioned
“the logic behind continued adherence to the [ Auer ]
doctrine”; they argued that, without Auer deference, Mr.
Kisor’s reading of the regulation would likely prevail.[ 42 ] Mr. Kisor then asked us to grant
certiorari to reconsider Auer . Thinking it past time to do
so, we granted the petition.[ 43 ]

															II. The Administrative Procedure Act

															When this Court speaks about the rules
governing judicial review of federal agency action, we are not (or
shouldn’t be) writing on a blank slate or exercising some
common-law-making power. We are supposed to be applying the
Administrative Procedure Act. The APA is a “seminal” statute that
Congress wrote to define the relationship between courts and
agencies.[ 44 ] Some have even
described it as a kind of constitution for our “administrative
state.” Yet, remarkably, until today this Court has never made any
serious effort to square the Auer doctrine with the APA.
Even now, only four Justices make the attempt. And for at least two
reasons, their arguments are wholly unpersuasive.

															A

															The first problem lies in §706. That provision
instructs reviewing courts to “decide all relevant questions of
law” and “set aside agency action . . . found to be
. . . not in accordance with law.”[ 45 ] Determining the meaning of a statute or
regulation, of course, presents a classic legal question. But in
case these directives were not clear enough, the APA further
directs courts to “determine the meaning” of any relevant “agency
action,” including any rule issued by the agency.[ 46 ] The APA thus requires a reviewing court
to resolve for itself any dispute over the proper interpretation of
an agency regulation. A court that, in deference to an agency,
adopts something other than the best reading of a regulation isn’t
“decid[ing]” the relevant “questio[n] of law” or “determin[ing] the
meaning” of the regulation. Instead, it’s allowing the agency to
dictate the answer to that question. In doing so, the court is
abdicating the duty Congress assigned to it in the APA.[ 47 ]

															Justice Kagan seeks to address the glaring
inconsistency between our judge-made rule and the controlling
statute this way. On her account, the APA tells a reviewing court
to “determine the meaning” of regulations, but it does not tell the
court “ how ” to do that. Thus, we are told, reading the
regulation for itself and deferring to the agency’s reading are
just two equally valid ways for a court to fulfill its statutory
duty to “determine the meaning” of the regulation. Ante , at
20–21.

															But the APA isn’t as anemic as that. Its
unqualified command requires the court to determine legal
questions—including questions about a regulation’s meaning—by its
own lights, not by those of political appointees or bureaucrats who
may even be self-interested litigants in the case at hand. Nor can
there be any doubt that, when Congress wrote the APA, it knew
perfectly well how to require judicial deference to an agency when
it wished—in fact, Congress repeatedly specified deferential
standards for judicial review elsewhere in the
statute.[ 48 ] But when it
comes to the business of interpreting regulations, no such command
exists; instead, Congress told courts to “determine” those matters
for themselves. Though one hardly needs to be an academic to
recognize the point, “commentators in administrative law have
‘generally acknowledged’ that Section 706 seems to require
de novo review on questions of law.”[ 49 ]

															What the statutory language suggests, experience
confirms. If Auer deference were really just another way for
courts to “determine the meaning” of regulations under §706, you
might expect that a final judicial “determination” would at least
settle, as a matter of precedent, the question of what the
regulation “means.” Of course, even after one court has spoken on a
regulation’s meaning, that court or another might properly give
weight to a new agency interpretation as part of the court’s own
decision-making process. See supra , at 6. But in light of National Cable & Telecommunications Assn. v. Brand X
Internet Services ,[ 50 ]
courts have interpreted Auer as forbidding a court from ever
“determin[ing] the meaning” of a regulation with the force that
normally attaches to precedent, because an agency is always free to
adopt a different view and insist on judicial deference to its new
judgment.[ 51 ] And if an
agency can not only control the court’s initial decision but also
revoke that decision at any time, how can anyone honestly say the
court, rather than the agency, ever really “determine[s]” what the
regulation means?

															To test the point further, consider a statute
that tells a court to “determin[e]” an appropriate sentence in a
criminal case.[ 52 ] If the
judge said he was sending a defendant to prison for longer than he
believed appropriate only in deference to the government’s
“reasonable” sentencing recommendation, would anyone really think
that complied with the law? Or take a statute that instructs a
court to “determine” whether a consent judgment proposed by the
government in a civil antitrust case “is in the public
interest.”[ 53 ] If a court
thought the proposed judgment harmful to the public but decided to
defer to the government’s “reasonable” contrary view anyway, would
anyone suggest the court had complied with Congress’s
instruction?

															Nor does Justice Kagan’s reading of §706 offer
any logical stopping point. If courts can “determine the meaning”
of a regulation by deferring to any “reasonable” agency reading,
then why not by deferring to any agency reading? If it were
really true that the APA has nothing to say about how courts
decide what regulations mean, then it would follow that the APA
tolerates a rule that “the agency is always right.” And if you find
yourself in a place as absurd as that, you might want to consider
whether you’ve taken a wrong turn along the way.

															B

															The problems don’t end there. Auer is
also incompatible with the APA’s instructions in §553. That
provision requires agencies to follow notice-and-comment procedures
when issuing or amending legally binding regulations (what the APA
calls “substantive rules”), but not when offering mere
interpretations of those regulations.[ 54 ] An agency wishing to adopt or amend a binding
regulation thus must publish a proposal in the Federal Register,
give interested members of the public an opportunity to submit
written comments on the proposal, and consider those comments
before issuing the final regulation. Under the APA, that regulation
then carries the force of law unless and until it is amended or
repealed.[ 55 ] By contrast,
an agency can announce an interpretation of an existing substantive
regulation without advance warning and in pretty much whatever form
it chooses. Auer effectively nullifies the
distinction Congress drew here. Under Auer , courts must
treat as “controlling” not only an agency’s duly promulgated rules
but also its mere interpretations—even ones that appear only in a
legal brief, press release, or guidance document issued without
affording the public advance notice or a chance to comment. For all
practical purposes, “the new interpretation might as well be a new
regulation.”[ 56 ] Auer thus oblit- erates a distinction Congress thought vital and
supplies agencies with a shortcut around the APA’s required
procedures for issuing and amending substantive rules that bind the
public with the full force and effect of law.[ 57 ]

															Think of it this way. We’ve held that the
Constitution’s specification of a “single, finely wrought”
procedure for the enactment of statutes (bicameralism and
presentment) necessarily implies that Congress cannot amend an
enacted statute without following that procedure—say, by allowing a
single House to change what the law requires.[ 58 ] By the same logic, Congress’s specification
in the APA of procedures for the creation of new substantive rules
(like notice and comment) necessarily implies that an agency cannot
amend a substantive rule without following those procedures. To
hold otherwise, as Auer demands, subverts the APA’s
design.

															Certain amici contend this argument is
“out of place” in this particular case because the VA happened to
issue the interpretation challenged here in an adjudicative
proceeding.[ 59 ] But the
premise on which they proceed—that the APA permits agencies to
issue “controlling” amendments to their regulations in adjudicative
proceedings—is not correct. Once an agency issues a substantive
rule through notice and comment, it can amend that rule only by
following the same notice-and-comment procedures.[ 60 ] Whether an agency issues its
interpretation in a press release or something it chooses to call
an “adjudication,” all we have is the agency’s opinion about what
an existing rule means, something that the APA tells us is not binding in a court of law or on the American people.

															If that won’t work, Justice Kagan tries an
alternative argument from nearly the opposite direction. She
replies that affording Auer deference to an agency’s
interpretation of its own rules never offends the APA because the
agency’s interpretation lacks “the force of law” associated with
substantive rules. Agency interpretations lack this force, we are
told, because a court always retains the power to decide at least
whether the interpretation is entitled to deference. Ante ,
at 22–23. But this argument rests on an implausibly narrow
understanding of what it means for an agency action to bear the
force of law. Under Justice Kagan’s logic, even a binding
substantive rule would lack the force of law because a court
retains the power to decide whether the rule is arbitrary and
capricious and thus invalid under the APA. But no one believes
that. While an agency interpretation, just like a substantive rule,
“must meet certain conditions before it gets deference,” “once it
does so [ Auer makes it] every bit as binding as a
substantive rule.”[ 61 ] To
suggest that Auer does not make an agency’s interpretive
guidance “binding o[n] anyone,” ante , at 23, is linguistic
hocus-pocus.

															C

															If Auer cannot be squared with the text
of the APA, Justice Kagan suggests it at least conforms to a
reason- able “presumption about congressional intent.” Ante ,
at 7. The theory seems to be that whenever Congress grants an
agency “rulemaking power,” it also implicitly gives the
agency “ ‘the power authoritatively to interpret’ ”
whatever rules the agency chooses to adopt. Ante , at 8. But
against the clear statutory commands Congress gave us in the APA,
what sense does it make to “presume” that Congress really,
secretly, wanted courts to treat agency interpretations as binding?
Normally, this Court does not allow hidden legislative intentions
to “muddy” such plainly expressed statutory directives.[ 62 ]

															Even on its own terms, too, this argument proves
pretty muddy. It goes something like this: The drafters of the APA
did not intend to “ ‘significantly alter’ ” established
law governing judicial review of agency action as of 1946; the Auer doctrine was part of that established law; therefore,
the APA implicitly requires courts to afford agencies Auer deference. Ante , at 21–22. But neither of this syllogism’s
essential premises stands on solid ground.

															Take the major premise—that those who adopted
the APA intended to work no change in the established law of
judicial review of agency action. Justice Kagan is right, of
course, that Attorney General Clark claimed as much shortly after
the APA’s passage. Ante , at 21. But his view, which
reflected the interests of the executive branch, was far from
universally shared. Others, including many members of Congress,
thought the APA would clarify, if not expand, the scope of judicial
review. For example, Senator McCarran, the Chairman of the
Judiciary Committee, wrote that it would be “hard . . .
for anyone to argue that this Act did anything other than cut down
the ‘cult of discretion’ so far as federal law is
concerned.”[ 63 ] And both the
House and Senate reports on the APA said it was intended to
“provid[e] that questions of law are for courts rather than
agencies to decide in the last analysis.”[ 64 ]

															Just five years after the APA’s passage, this
Court seemed to side with those who thought the APA was intended to
do more than just summarize existing law. In an opinion by Justice
Frankfurter, the Court opined that the APA required courts to
assume “ more responsibility” for reviewing agency decisions
“than some courts ha[d] shown in the past.”[ 65 ] One early commentator likewise observed that
the APA seemed designed to eliminate all doubt that questions of
law “shall be decided by the reviewing Court for itself, and in the
exercise of its own independent judgment”; “[m]ore explicit words
to impose this mandate,” he thought, “could hardly be
found.”[ 66 ]

															Justice Kagan’s syllogism runs into even more
trouble with its minor premise—that the Auer doctrine was a
well-established part of the common law background when Congress
enacted the APA in 1946. As we’ve seen, this Court planted the
seeds of Auer deference for the first time in dictum in Seminole Rock , just a year before Congress passed the APA.
See Part I–B, supra . And that dictum did not somehow
immediately become an entrenched part of the common law: For years
following Seminole Rock , courts and “commentators largely
ignored” it,[ 67 ] and those
who took notice weren’t sure what to make of it. Professor Davis,
for example, doubted that the dictum could be “taken at face value”
given that it seemed “irreconcilable” with the Court’s approach in
other cases.[ 68 ] In truth,
when Congress passed the APA the law of judicial review of agency
action was in a confused state. During the congressional hearings
on the bill, one witness’s suggestion that Congress should leave
the scope of judicial review “as it now is” drew this fair reply
from Representative Walter, chairman of the House Subcommittee on
Administrative Law and author of the House Report on the APA: “You
say ‘as it now is.’ Frankly, I do not know what it now is
. . . . [T]he Supreme Court apparently changes its
mind daily.”[ 69 ]

															III. The Constitution

															Not only is Auer incompatible with the
APA; it also sits uneasily with the Constitution. Article III, §1
provides that the “judicial Power of the United States” is vested
exclusively in this Court and the lower federal courts. A core
component of that judicial power is “ ‘the duty of
interpreting [the laws] and applying them in cases properly brought
before the courts.’ ”[ 70 ] As Chief Justice Marshall put it, “[i]t is
emphatically the province and duty of the judicial department to
say what the law is.”[ 71 ]
And never, this Court has warned, should the “judicial power
. . . be shared with [the] Executive Branch.”[ 72 ] Yet that seems to be exactly
what Auer requires.

															A

															Our Nation’s founders were painfully aware of
the dangers of executive and legislative intrusion on judicial
decision-making. One of the abuses of royal power that led to the
American Revolution was King George’s attempt to gain influence
over colonial judges.[ 73 ]
Colonial legislatures, too, had interfered with the courts’
independence “at the behest of private interests and
factions.”[ 74 ] These
experiences had taught the founders that “ ‘there is no
liberty if the power of judgment be not separated from the
legislative and executive powers.’ ”[ 75 ] They knew that when political actors are left free
not only to adopt and enforce written laws, but also to control the
interpretation of those laws, the legal rights of “litigants with
unpopular or minority causes or . . . who belong to
despised or suspect classes” count for little.[ 76 ] Maybe the powerful, well-heeled, popular,
and connected can wheedle favorable outcomes from a system like
that—but what about everyone else? They are left always a little
unsure what the law is, at the mercy of political actors and the
shifting winds of popular opinion, and without the chance for a
fair hearing before a neutral judge. The rule of law begins to
bleed into the rule of men.

															Experiencing all this in their own time, the
founders sought to ensure that those who came after them would not.
Believing that “[n]o maxim was better established” than “that the
power of making ought to be kept distinct from that of expounding,
the laws,”[ 77 ] they designed
a judiciary that would be able to interpret the laws “free from
potential domination by other branches of government.”[ 78 ] To that end, they resisted
proposals that would have subjected judicial decisions to review by
political actors.[ 79 ] And
they rejected the British tradition of using the upper house of the
legislature as a court of last resort, out of fear that a body with
“even a partial agency in passing bad laws” would operate under the
“same spirit” in “interpreting them.”[ 80 ] Instead, they gave federal judges life tenure,
subject only to removal by impeachment; and they guaranteed that
the other branches could not reduce judges’ compensation so long as
they remained in office.

															The founders afforded these extraordinary powers
and protections not for the comfort of judges, but so that an
independent judiciary could better guard the people from the
arbitrary use of governmental power. And sitting atop the judicial
branch, this Court has always carried a special duty to “jealously
guar[d]” the Constitution’s promise of judicial
independence.[ 81 ] So we have
long resisted any effort by the other branches to “ ‘usurp a
court’s power to interpret and apply the law to the circumstances
before it.’ ”[ 82 ] The
judicial power to interpret the law, this Court has held, “can no
more be shared with another branch than the Chief Executive, for
example, can share with the Judiciary the veto power, or the
Congress share with the Judiciary the power to override a
Presidential veto.”[ 83 ] Auer represents no trivial threat to
these foundational principles. Under the APA, substantive rules
issued by federal agencies through notice-and-comment procedures
bear “the ‘force and effect of law’ ”[ 84 ] and are part of the body of federal law,
binding on private individuals, that the Constitution charges
federal judges with interpreting. Yet Auer tells the judge
that he must interpret these binding laws to mean not what he
thinks they mean, but what an executive agency says they mean.
Unlike Article III judges, executive officials are not, nor are
they supposed to be, “wholly impartial.”[ 85 ] They have their own interests, their own
constituencies, and their own policy goals—and when interpreting a
regulation, they may choose to “press the case for the side [they]
represen[t]” instead of adopting the fairest and best
reading.[ 86 ] Auer thus means that, far from being “kept distinct,” the powers of
making, enforcing, and interpreting laws are united in the same
hands—and in the process a cornerstone of the rule of law is
compromised.

															Consider an analogy. The Court has long held
that Congress cannot “ ‘indirectly control the action of the
courts, by requiring of them a construction of the law according to
its own views.’ ”[ 87 ]
If Congress disagrees with how courts are interpreting an existing
statute, it is free to amend the statute to establish a different
rule going forward. What it cannot do is issue “a mandate
. . . to compel the courts to construe and apply
[existing law], not according to the judicial, but according to the
legislative judgment.”[ 88 ]
As early as 1804, when a lawyer argued before this Court that an
Act of the North Carolina legislature could not control the Court’s
construction of an earlier North Carolina statute because “[t]o
declare what the law is, or has been, is a judicial power,” not a
legislative power, the Court stopped him, deeming the point too
plain for argument.[ 89 ]

															But if the legislature can’t control a judge’s
interpretation of an existing statute, how can an executive agency
control a judge’s interpretation of an existing and equally binding
regulation? Auer allows an agency to do exactly what this
Court has always said a legislature cannot do: “compel the courts
to construe and apply” a law on the books, “not according to the
judicial . . . judgment,” but according to the judgment
of another branch.[ 90 ] When
we defer to an agency interpretation that differs from what we
believe to be the best interpretation of the law, we compromise our
judicial independence and deny the people who come before us the
impartial judgment that the Constitution guarantees them. And we
mislead those whom we serve by placing a judicial imprimatur on what is, in fact, no more than an exercise of raw political
executive power.[ 91 ]

															B

															What do our colleagues have to say about these
concerns? A majority has nothing to offer, and Justice Kagan
dismisses them out of hand. In fact, she barely mentions the
Constitution, other than to assure us that Auer does not
allow agencies to “usur[p] the interpretive role of courts” because
“courts retain a firm grip on the interpretive function” through
their ability to decide whether Auer deference applies. Ante , at 25. But that is no assurance at all. The judicial
power has always been understood to provide the people with a
neutral arbiter who bears the responsibility and duty to “expound
and interpret” the governing law, not just the power to say whether someone else’s interpretation, let alone the interpretation
of a self-interested political actor, is “reasonable.”[ 92 ]

															To be sure, it’s conceivable that Congress might
seek to limit the ability of judges to remedy an adverse agency
action. It might, for example, provide that a court shall have
power to set aside agency action pursuant to a regulation only if
the action was based on an unreasonable interpretation of the
regulation. But even assuming the constitutionality of a
hypothetical statute like that, Auer is different. It does
not limit the scope of the judicial power; instead, it seeks
to coopt the judicial power by requiring an Article III
judge to decide a case before him according to principles that he
believes do not accurately reflect the law. Under Auer , a
judge is required to lay aside his independent judgment and declare
affirmatively that a regulation means what the agency says it means—and, thus, that the law is what the
agency says it is. Then the judge is compelled to exercise
his judicial authority to adjust private rights and obligations
based on the agency’s (mis)understanding of the law. If Auer were a statute, it would not be an exercise of Congress’s “power
(within limits) to tell the courts what classes of cases
they may decide,” or what relief they may supply, but a forbidden
attempt “to prescribe or superintend how they decide those
cases.”[ 93 ] And in the
absence of any statute like that, this Court surely should not so
freely give away to the executive branch its assigned
responsibility to interpret the laws. “Abdication of responsibility
is not part of the constitutional design.”[ 94 ]

															In the end, Justice Kagan’s only real reply is
this: However misguided it may be to hand over our interpretive
powers to executive agencies, at least there isn’t a mountain of
empirical evidence showing that agencies have used this power to
deliberately write “vague and open-ended” regulations to maximize
their interpretive leeway. Ante , at 24. But even this misses
the point. Whether or not regulations are “ ‘designed’ ”
to be vague, ibid. , many can be read in different ways,
especially when new and unanticipated applications arise; cases
like that come before the courts all the time. Without Auer ’s shadow hanging over them, parties would receive a
fair hearing before an impartial judge. The agency’s interpretation
would sometimes be rejected; and that, in turn, might lead it to
solicit public comment on possible amendments to the regulation,
which would provide an opportunity for public input that might
produce better policy. But with Auer , there is no fair
hearing and no need for the agency to amend the regulation through
notice and comment. Whether purposeful or not, the agency’s failure
to write a clear regulation winds up increasing its power, allowing
it to both write and interpret rules that bear the force of law—in
the process uniting powers the Constitution deliberately separated
and denying the people their right to an independent judicial
determination of the law’s meaning.

															IV. Policy Arguments

															Lacking support elsewhere, Justice Kagan is
forced to resort to policy arguments to defend Auer . But
even the most sensible policy argument would not empower us to
ignore the plain language of the APA or the demands of the
Constitution. And as we’ve seen, those documents reflect a very
different “policy” judgment by the people and their
representatives. Besides, the policy argu- ments offered today are
not just unpersuasive, they are troubling.

															Take the first and boldest offering. Justice
Kagan suggests that determining the meaning of a regulation is
largely a matter of figuring out what the “person who wrote it
. . . intended.” Ante , at 8. In this way, we’re
told, a legally binding regulation isn’t all that different from “a
memo or an e-mail”—if you “[w]ant to know what [it] means,” you’d
better “[a]sk its author.” Ante , at 8–9. But the federal
government’s substantive rules are not like memos or e-mails; they
are binding edicts that carry the force of law for all citizens.
And if the rule of law means anything, it means that we are
governed by the public meaning of the words found in statutes and
regulations, not by their authors’ private intentions. This is a
vital part of what it means to have “a government of laws, and not
of men.”[ 95 ] When judges
interpret a regulation, what we are trying to get at, as Justice
Holmes explained long ago, is not the “particular intent” of those
who wrote it, but “what [its] words would mean [to] a normal
speaker of English . . . in the circumstances in which
they were used.”[ 96 ] If the
best reading of the regulation turns out to be something other than
what the agency claims to have intended, the agency is free to
rewrite the regulation; but its secret intentions are not the
law.

															Nor does Justice Kagan’s account of the
interpretive process even wind up supporting Auer . If a
court’s goal in interpreting a regulation really were to determine
what its author “intended,” Auer would be an almost complete
mismatch with the goal. Agency personnel change over time, and an
agency’s policy priorities may shift dramatically from one
presidential administration to another. Yet Auer tells
courts that they must defer to the agency’s current view of
what the regulation ought to mean, which may or may not correspond
to the views of those who actually wrote it. If interpreting a
regulation really were just like reading an e-mail, Auer would be like seeking guidance about the e-mail’s meaning, years or
decades later, from the latest user of the computer from which the
e-mail was sent. We’ve repeatedly rejected that approach in the
context of statutory interpretation. While Members of this Court
sometimes disagree about the usefulness of pre-enactment legislative history, we all agree that legislators’ statements
about the meaning of an already-enacted statute are not “a
legitimate tool of statutory interpretation,’ ” much less a
controlling one.[ 97 ] So why
on earth would we give “controlling weight” to an agency’s
statements about the meaning of an already-promulgated
regulation?

															Proceeding farther down this doubtful path,
Justice Kagan asserts that resolving ambiguities in a regulation
“sounds more in policy than in law” and is thus a task more suited
to executive officials than judges. Ante , at 9. But this
claim, too, contradicts a basic premise of our legal order: that we
are governed not by the shifting whims of politicians and
bureaucrats, but by written laws whose meaning is fixed and
ascertainable—if not by all members of the public, then at least by
lawyers who can advise them and judges who must apply the law to
individual cases guided by the neutral principles found in our
traditional tools of interpretation. The text of the regulation is
treated as the law, and the agency’s policy judgment has the
force of law only insofar as it is embodied in the
regulatory text. If “new issues demanding new policy calls” arise
that aren’t addressed in existing regulations, ante , at 10,
the solution is for the agency to promulgate new regulations using
the notice-and-comment procedures set forth in the APA. But an
agency has no warrant to compel judges to change the law to conform
with the agency’s current policy preferences.

															To be sure, during the period of Auer ’s
ascendancy some suggested that the meaning of written law is always
“radically indeterminate” and that judges expounding it are “for
the most part, guided by policy—not text.”[ 98 ] And in an environment like that it was
perhaps thought a small step to conclude that, if legal disputes
are going to be resolved on political grounds, then they ought to
be resolved by real politicians in the executive branch rather than
ersatz politicians on the bench. But the proposed cure proved worse
than the disease. Arguments like these surrendered the judgment
embodied in our Constitution and the APA that courts owe the people
they serve their independent legal judgment about the law’s
meaning. Besides, we’ve long since come to realize that the real
cure doesn’t lie in turning judges into rubber stamps for
politicians, but in redirecting the judge’s interpretive task back
to its roots, away from open-ended policy appeals and speculation
about legislative intentions and toward the traditional tools of
interpretation judges have employed for centuries to elucidate the
law’s original public meaning. Today it is even said that we judges
are, to one degree or another, “all textualists now.”[ 99 ]

															Pursuing a more modest tack, Justice Kagan next
suggests that Auer is justified by the respect due agencies’
“technical” expertise. Ante , at 10. But no one doubts that
courts should pay close attention to an expert agency’s views on
technical questions in its field. Just as a court “would want to
know what John Henry Wigmore said about an issue of evidence law
[or] what Arthur Corbin thought about a matter of contract law,” so
too should courts carefully consider what the Food and Drug
Administration thinks about how its prescription drug safety
regulations operate.[ 100 ]
The fact remains, however, that even agency experts “can be wrong;
even Homer nodded.”[ 101 ] Skidmore and the traditional approach it embodied recognized
both of these facts of life long ago, explaining that, while courts
should of course afford respectful consideration to the expert
agency’s views, they must remain open to competing expert and other
evidence supplied in an adversarial setting. Respect for an
agency’s technical expertise demands no more.

															Justice Kagan’s final policy argument is that Auer promotes “consistency” and “uniformity” in the
interpretation of regulations. Ante , at 10–11. If we let
courts decide what regulations mean, she warns, they might
disagree, and it might take some time for higher courts to resolve
those disagreements. But consistency and uniformity are hardly
grounds on which Auer ’s advocates should wish to fight. The
judicial process is how we settle disputes about the meaning of
written law, and our judicial system is more than capable of
producing a single, uniform, and stable interpretation that will
last until the regulation is amended or repealed. Meanwhile, under Auer courts often disagree about whether deference is
warranted, see supra , at 10–11, and a regulation’s “meaning”
can be transformed with the stroke of a pen any time there is a new
presidential administration. “Consistency,” “uniformity,” and
stability in the law are hardly among Auer ’s crowning
achievements.

															V. Stare Decisis In the end, a majority declines to endorse
Justice Kagan’s arguments and insists only that, even if Auer is not “right and well-reasoned,” we’re stuck with it
because of the respect due precedent. Ante , at 27.

															But notice: While pretending to bow to stare
decisis , the majority goes about reshaping our precedent in new
and experimental ways. True, the majority admits, this Court has in
the past accorded Auer deference
“ ‘reflexive[ly],’ ” “without significant analysis of the
underlying regulation” or “careful attention to [its] nature and
context,” and encouraged lower courts to do the same. Ante ,
at 12–13. But no more. From now on, the majority says, not only
must judges “exhaust all the ‘traditional tools’ of construction”
to decide whether the agency’s interpretation is “reasonable,” they
must also make “an independent inquiry into whether the character
and context of the agency interpretation” justifies deference. Ante , at 13–15. The majority candidly admits that it finds
it impossible to “reduce” this new inquiry “to any exhaustive
test,” so it settles for laying out some “markers.” Ante , at
15. What are the markers? We are told that courts should often—but
not always—withhold deference from an interpretation offered by
mid-level agency staff; often—but not always—withhold deference
from a nontechnical, “prosaic-seeming” interpretation; often—but
not always—withhold deference from an interpretation advanced for
the first time in an amicus brief; and often—but not
always—withhold deference from an interpretation that conflicts
with an earlier one. See ante , at 15–18. The only certainty
in all this is that the majority isn’t really much moved by stare decisis ; everyone recognizes, to one degree or
another, that Auer cannot stand. And between our remaining
choices—continuing to make up new deference rules, or returning to
the text of the APA and the approach to judicial review that
prevailed for most of our history—the answer should have been
easy.

															A

															There are serious questions about whether stare decisis should apply here at all. To be sure, Auer ’s narrow holding about the meaning of the regulation at
issue in that case may be entitled to stare decisis effect.
The same may be true for the specific holdings in other cases where
this Court has applied Auer deference. But does stare
decisis extend beyond those discrete holdings and bind future
Members of this Court to apply Auer ’s broader deference
framework?

															It seems doubtful that stare decisis demands that much. We are not dealing with a precedent that
purported to settle the meaning of a single statute or regulation
or resolve a particular case. The Auer doctrine claims to do
much more than that—to prescribe an interpretive methodology
governing every future dispute over the meaning of every
regulation. In other contexts, we do not regard statements in our
opinions about such generally applicable interpretive methods, like
the proper weight to afford historical practice in constitutional
cases or legislative history in statutory cases, as binding future
Justices with the full force of horizontal stare
decisis .[ 102 ] Why,
then, should we regard as binding Auer ’s statements about
the weight to afford agencies’ interpretations in regulatory cases?
To the extent Auer purports to dictate “the interpretive
inferences that future Justices must draw in construing statutes
and regulations that the Court has never engaged,” it may well
“exceed the limits of stare decisis.”[ 103 ]

															Even if our past expressions of support for Auer deference bear some precedential force, they
certainly are not entitled (as the majority suggests, ante ,
at 26–27) to the special, heightened form of stare decisis we reserve for narrow statutory decisions. In contrast to
precedents that fix the meaning of particular statutes and
generate reliance interests in the process, the Auer doctrine is an abstract default rule of interpretive methodology
that settles nothing of its own force. And this Court has
recognized that it is “inconsistent with the Court’s proper role”
to insist that Congress exercise its legislative power to overturn
such erroneous and judicially invented “default rule[s].”[ 104 ] That should be especially so
here because Auer ’s default rule undermines judicial
independence, which this Court has a special responsibility to
defend.

															Nor is it entirely clear that Congress could overturn the Auer doctrine legislatively. The
majority describes Auer as a “presumption” about how courts
should interpret statutes granting rulemaking power to agencies. Ante , at 12. Congress can, of course, rebut the
presumption on a statute-by-statute basis, or even for all past
statutes. But can Congress eliminate the Auer presumption for future statutes? Perhaps—but legislation like that
would raise questions, which the majority does not address, about
the ability of one Congress to entrench its preferences by
attempting to control the interpretation of legislation enacted by
future Congresses.[ 105 ]
We should not be in the business of tossing “ ‘balls
. . . into Congress’s court,’ ” ante , at 27,
that would explode with constitutional questions if Congress tried
to pick them up.

															B

															Even assuming for argument’s sake that
standard stare decisis considerations apply, they still do
not require us to retain Auer . Even the majority implicitly
recognizes this much, as it proceeds to vacate a lower court
judgment that faithfully applied Auer and instruct that
court to try again using the majority’s new directions. If stare
decisis allows us so freely to remodel Auer , it’s hard
to see on what account it might require us to retain it.

															We do not lightly overturn precedents, and we
seek always to honor the thoughtful guidance of those who have
preceded us. At the same time, everyone agrees that stare
decisis is not an “ ‘inexorable command,’ ”[ 106 ] and this Court should not
always remain bound to decisions whose “rationale no longer
withstands ‘careful analysis.’ ”[ 107 ] Recognizing the need for balance in this area,
the Court has, over time, fashioned principles to guide our
treatment of precedent. Those principles call on us to consider
factors such as “the quality of [the precedent’s] reasoning, the
workability of the rule it established, its consistency with other
related decisions, developments since the decision was handed down,
and reliance on the decision.”[ 108 ] As applied to Auer , all of these
considerations weigh strongly in favor of bidding farewell to the
doctrine rather than keeping it on life support. First , we’ve already seen that no
persuasive rationale supports Auer . From its humble origins
as an unexplained bit of dictum in a wartime case about emergency
price controls, the Auer doctrine evolved into a rigid rule
of deference—all without any serious attempt by this Court to
rationalize it or reconcile it with the APA, the Constitution, or
traditional modes of judicial review. See Part I, supra .
Even its fiercest defenders acknowledge that “ Auer deference
has not remained static over time” and urge the Court to continue
to “shape” and “refin[e]” the doctrine.[ 109 ] Today’s decision attempts just such a
“refinement” by hedging Auer with new qualifications and
limitations. See ante , at 11–18. This shifting ground
“undermin[es] the force of stare decisis .”[ 110 ] Second , today’s ruling all but admits
that Auer has not proved to be a workable standard. Even
before this latest overhaul, uncertainty surrounding Auer ’s
scope and application had caused many to question whether there was
any “practical benefit” in continuing to apply Auer “rather
than a less deferential but more flexible and open-ended standard
like Skidmore .”[ 111 ] See supra , at 10–11. Nor does the majority’s
kinder, gentler version of Auer promise to solve the
problem. On the contrary, its newly mandated inquiry into the
“character and context of the agency interpretation,” which it
admits cannot be reduced “to any exhaustive test,” ante , at
15, seems destined only to compound the confusion. See supra , at 35. Many words come to mind to describe the tasks
we assign lower court judges today, but “workable” is not among
them. Third , the Auer doctrine is, as we
have also already seen, out of step with how courts normally
interpret written laws. When we interpret a regulation, we
typically (at least when there is no agency say-so) proceed in the
same way we would when interpreting any other written law: We
“begin our interpretation of the regulation with its text” and, if
the text is unclear, we “turn to other canons of interpretation”
and tie-breaking rules to resolve the ambiguity.[ 112 ] And when we interpret an ambiguous statute , we never ask what current members of Congress think
it means; in fact, we’ve held unanimously that legislators’
post-enactment views about a statute’s meaning are not even a
“ ‘legitimate tool of statutory
interpretation.’ ”[ 113 ] Affording “controlling weight” to regulators’
post-promulgation views about the meaning of an ambiguous
regulation is hard to square with these usual judicial
practices.[ 114 ] Fourth , the explosive growth of the
administrative state over the last half-century has exacerbated Auer ’s potential for mischief. When the Court first uttered
its dictum in Seminole Rock , the administrative state was
new and the APA was only a gleam in Congress’s eye. Even 20 years
later, when the Court began reviving the Seminole Rock dictum and turning it into a new deference doctrine, it was not yet
apparent how pervasive the administrative state would become in the
lives of ordinary Americans. Now, in the 21st century, “[t]he
administrative state wields vast power and touches almost every
aspect of daily life.”[ 115 ] Among other things, it produces “ ‘reams of
regulations’ ”[ 116 ]—so many that they dwarf the statutes enacted by
Congress. 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.[ 117 ] And agencies add thousands
more pages of regulations every year. Whether you think this
administrative fecundity is a good or a bad thing, it surely means
that the cost of continuing to deny citizens an impartial judicial
hearing on the meaning of disputed regulations has increased
dramatically since this Court started down this road. Fifth , Auer has generated no
serious reliance interests. The only parties that might have relied
on Auer ’s promise of deference are agencies that use post hoc interpretations to bypass the APA’s
notice-and-comment procedures. But this Court has never suggested
that the convenience of government officials should count in the
balance of stare decisis , especially when weighed against
the interests of citizens in a fair hearing before an independent
judge and a stable and knowable set of laws. In short,
“ ‘[t]he fact that [agencies] may view [ Auer deference]
as an entitlement does not establish the sort of reliance interest
that could outweigh the countervailing interest’ ” of all
citizens “ ‘in having their constitutional rights fully
protected.’ ”[ 118 ]

															Coming closer to the mark, the majority worries
that “abandoning Auer deference would cast doubt on many
settled constructions” of regulations on which regulated parties
might have relied. Ante , at 26. But, again, decisions
construing particular regulations might retain stare decisis effect even if the Court announced that it would no longer adhere
to Auer ’s interpretive methodology. After all, decisions
construing particular statutes continue to command respect even
when the interpretive methods that led to those constructions fall
out of favor. Besides, if the majority is correct that abandoning Auer would require revisiting regulatory constructions that
were upheld based on Auer deference, the majority’s revision
of Auer will yield exactly the same result. There are
innumerable lower court decisions that have followed this Court’s
lead and afforded Auer deference mechanically, without
conducting the inquiry the Court now holds is required. Today’s
ruling casts no less doubt on the continuing validity of those
decisions than we would if we simply moved on from Auer .

															*

															Overruling Auer would have taken us
directly back to Skidmore , liberating courts to decide cases
based on their independent judgment and “follow [the] agency’s
[view] only to the extent it is persuasive.”[ 119 ] By contrast, the majority’s attempt to
remodel Auer ’s rule into a multi-step, multi-factor inquiry
guarantees more uncertainty and much litigation. Proceeding in this
convoluted way burdens our colleagues on the lower courts, who will
have to spend time debating deference that they could have spent
interpreting disputed regulations. It also continues to deny the
people who come before us the neutral forum for their disputes that
they rightly expect and deserve.

															But this cloud may have a silver lining: The
majority leaves Auer so riddled with holes that, when all is
said and done, courts may find that it does not constrain their
independent judgment any more than Skidmore . As
reengineered, Auer requires courts to “exhaust all the
‘traditional tools’ of construction” before they even consider
deferring to an agency. Ante , at 13–14. And those tools
include all sorts of tie-breaking rules for resolving ambiguity
even in the closest cases. Courts manage to make do with these
tools in many other areas of the law, so one might hope they will
hardly ever find them inadequate here. And if they do, they will
now have to conduct a further inquiry that includes so few firm
guides and so many cryptic “markers” that they will rarely, if
ever, have to defer to an agency regulatory interpretation that
differs from what they believe is the best and fairest reading.

															But whatever happens, this case hardly promises
to be this Court’s last word on Auer . If today’s opinion
ends up reducing Auer to the role of a tin god—officious,
but ultimately powerless—then a future Court should candidly admit
as much and stop requiring litigants and lower courts to pay token
homage to it. Alternatively, if Auer proves more resilient,
this Court should reassert its responsibility to say what the law
is and afford the people the neutral forum for their disputes that
they expect and deserve. Notes 1 519
U.S. 452 (1997). 2 Larkin & Slattery,
The World After Seminole Rock and Auer , 42 Harv.
J. L. & Pub. Pol’y 625, 641 (2019) (internal quotation
marks omitted). 3 See Knudsen &
Wildermuth, Unearthing the Lost History of Seminole Rock , 65
Emory L. J. 47, 55, 65, 68 (2015) (Lost History). 4 St. Joseph Stock Yards
Co. v. United States , 298 U.S.
38 , 73 (1936) (concurring opinion). See also FTC v. Gratz , 253 U.S.
421 , 427 (1920); ICC v. Union Pacific R. Co. , 222 U.S.
541 , 547 (1912); Belden v. Chase , 150 U.S.
674 , 698 (1893); Decatur v. Paulding , 14 Pet.
497, 515 (1840); accord, Woolhandler, Judicial Deference to
Administrative Action—A Revisionist History, 43 Admin. L. Rev.
197, 206–207 (1991). 5 Bamzai, The Origins of
Judicial Deference to Executive Interpretation, 126 Yale L. J. 908,
930–947 (2017) (Origins). 6 Id. , at 943, 962;
cf. NLRB v. Noel Canning , 573 U.S. 513, 572–573
(2014) (Scalia, J., concurring in judgment) (an “open, widespread,
and unchallenged” governmental practice can “guide [courts’]
interpretation” of an ambiguous text, but it cannot “alter” the
meaning of that text); Edward’s Lessee v. Darby , 12
Wheat. 206, 210 (1827) (“In the construction of a doubtful and
ambiguous law, the cotemporaneous construction of those who were
called upon to act under the law, and were appointed to carry its
provisions into effect, is entitled to very great
respect”). 7 169
U.S. 331 . 8 Id. , at
342. 9 Id. , at
342–343. 10 Cf.
Newman, How Courts Interpret Regulations, 35 Cal. L. Rev. 509,
521, and n. 78 (1947) (noting that Eaton suggested
administrative interpretations could be “ ‘persuasive’ but not
binding”). 11 323 U.S.
134 . 12 Id. , at 136–137. Much of the
legal analysis supporting this conclusion was contained in the
companion case, Armour & Co. v. Wantock , 323 U.S.
126 (1944), which made no mention of any administrative
interpretations. Id. , at 129–134; see Skidmore , 323
U. S., at 136 (citing the “reasons set forth in the Armour case decided herewith”). 13 Id. , at 139. 14 Id. , at 140; see also id. , at 139 (the agency’s views “are not, of course,
conclusive, even in the cases with which they directly deal” and do
not “bin[d] a district court’s processes, as an authoritative
pronouncement of a higher court might do”). 15 Davis, Administrative
Rules—Interpretative, Legislative, and Retroactive, 57 Yale
L. J. 919, 936–939, and n. 86 (1948); see also K. Davis,
Administrative Law §249, p. 901 (1951) (“[S]ubstitution of
judicial judgment on the content of interpretative rules is always
permissible, even though the reviewing court may give ‘weight’ or
‘great weight’ to the rule. The best guide may be the Court’s
formula in Skidmore . . . ”). 16 325 U.S.
410 . 17 Id. , at 414. 18 Id. , at 414–417. 19 Id. , at 417. 20 See
Davis, Scope of Review of Federal Administrative Action, 50 Colum.
L. Rev. 559, 597 (1950). 21 Lost
History 60; see also Anthony, The Supreme Court and the APA:
Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 12
(1996). 22 325
U. S., at 417–418; see Pojanowski, Revisiting Seminole
Rock , 16 Geo. J. L. & Pub. Pol’y 87, 88 (2018) (“A
closer look at Seminole Rock suggests an unremarkable
application of the less-deferential standard of review of Skidmore ”). 23 Lost
History 94–97; see Pojanowski, supra , at 92–96. 24 Lost
History 65–68. 25 Southern Goods Corp. v. Bowles , 158 F.2d 587, 590 (1946). 26 Ibid. 27 380 U.S.
1 , 4, 17–18 (accepting a regulatory interpretation by the
Secretary of the Interior that was consistent, widely disseminated,
and heavily relied upon, while not suggesting any disagreement with
the Secretary’s interpretation). 28 Lost
History 80. 29 See
generally id. , at 68–92, 98. 30 Id. , at 53. 31 Scalia, Judicial Deference to
Administrative Interpretations of Law, 1989 Duke L. J. 511,
520. 32 Decker v. Northwest
Environmental Defense Center , 568 U.S.
597 , 613 (2013); see Pauley v. BethEnergy Mines , Inc. , 501 U.S.
680 , 702 (1991) (the agency’s interpretation “need not be the
best or most natural one by grammatical or other
standards”). 33 Hickman & Thomson, The Chevron ization of Auer , 103 Minn. L. Rev.
Headnotes 103, 105 (2019). 34 See
Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev.
2118, 2134–2144 (2016). 35 Christopher v. SmithKline
Beecham Corp. , 567 U.S.
142 , 155 (2012) (alterations and internal quotation marks
omitted). 36 Leske, Splits in the Rock : The
Conflicting Interpretations of the Seminole Rock Deference
Doctrine by the U. S. Courts of Appeals, 66 Admin.
L. Rev. 787, 832 (2014); see Hickman & Thomson, supra , at 111 (noting a “glut of recent cases in which
members of the same court are openly divided on the proper
application of Auer ”). 37 See Perez v. Mortgage Bankers Assn. , 575 U.S. 92, ___–___
(2015) (Alito, J., concurring in part and concurring in judgment)
(slip op., at 1–2); id. , at ___–___ (Scalia, J., concurring
in judgment) (slip op., at 1–5); id. , at ___–___ (Thomas,
J., concurring in judgment) (slip op., at 8–23); Decker , 568
U. S., at 615–616 (Roberts, C. J., joined by Alito, J.,
concurring); id. , at 616–621 (Scalia, J., concurring in part
and dissenting in part); Talk America , Inc. v. Michigan Bell Telephone Co. , 564 U.S.
50 , 67–69 (2011) (Scalia, J., concurring); see also Kavanaugh,
Keynote Address: Justice Scalia and Deference 19:06 (June 2, 2016),
http://vimeo.com/169758593 (predicting “that Auer will
someday be overruled and that Justice Scalia’s dissent in Decker will be the law of the land”). 38 See, e.g. , Forrest Gen. Hospital v. Azar , ___
F. 3d ___, ___, 2019 WL 2417409, *7 (CA5 2019); San Diego
Gas & Elec. Co. v. FERC , 913 F.3d 127, 145,
n. 4 (CADC 2019) (Randolph, J., dissenting); United
States v. Havis , 907 F.3d 439, 450–452 (CA6 2018)
(Thapar, J., concurring), vacated, 921 F.3d 628, on reh’g en banc,
___ F. 3d ___ (CA6 2019); Marsh v. J. Alexander’s
LLC , 905 F.3d 610, 652–653 (CA9 2018) (Ikuta, J., dissenting); Egan v. Delaware River Port Auth. , 851 F.3d 263, 279
(CA3 2017) (Jordan, J., concurring in judgment); Perez v. Loren Cook Co. , 803 F.3d 935, 938, n. 2 (CA8 2015) (en
banc); Johnson v. McDonald , 762 F.3d 1362, 1366–1368
(CA Fed. 2014) (O’Malley, J., concurring); Exelon Generation
Co. v. Local 15 , Int’l Brotherhood of Elec.
Workers , AFL–CIO , 676 F.3d 566, 576, n. 5 (CA7
2012). 39 See, e.g. , Hickman & Thomson, supra , at 111–113;
Adler, Auer Evasions, 16 Geo. J. L. & Pub. Pol’y 1,
26 (2018); Pojanowski, 16 Geo. J. L. & Pub. Pol’y, at 99;
Knudsen & Wildermuth, Lessons From the Lost History of Seminole Rock , 22 Geo. Mason L. Rev. 647, 667 (2015);
Leske, supra , at 789–793; Molot, The Judicial Perspective in
the Administrative State: Reconciling Modern Doctrines of Deference
with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1,
108–110 (2000); Anthony, 10 Admin. L. J., at 4–12; Manning,
Constitutional Structure and Judicial Deference to Agency
Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 696
(1996). 40 Kisor v. Shulkin , 869
F.3d 1360, 1367 (2017). 41 Id. , at 1368. 42 Kisor v. Shulkin , 880
F.3d 1378, 1379 (CA Fed. 2018) (opinion of O’Malley,
J.). 43 586
U. S. ___ (2018). 44 Abbott Laboratories v. Gardner , 387 U.S.
136 , 140 (1967). 45 5
U. S. C. §706. 46 Ibid. ; see §551(13) (defining
“agency action”). 47 The
case before us doesn’t arise under the APA, but the statute that
governs here is plainly modeled on the APA and contains essentially
the same commands. It directs a reviewing court to “decide all
relevant questions of law” and to “set aside any regulation or any
interpretation thereof ” that is “not in accordance with law.”
38 U. S. C. §7292(d)(1). 48 See, e.g. , §706(2)(A) (arbitrary and capricious, abuse of
discretion); §706(2)(E) (substantial evidence); see also Universal Camera Corp. v. NLRB , 340 U.S.
474 , 482, n. 14 (1951) (noting that as originally
proposed, the APA’s judicial review provision would have included
an explicit requirement for courts to accord “due weight” to “the
experience, technical competence, specialized knowledge, and
legislative policy of the agency involved as well as the
discretionary authority conferred upon it” (internal quotation
marks omitted)). 49 Duffy, Administrative Common Law in
Judicial Review, 77 Texas L. Rev. 113, 194–195 (1998); see
Merrill, Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent
L. Rev. 1039, 1085–1086 (1997) (noting the “embarrassing” fact
that “the APA appears to compel th[e] conclusion” that “courts
should decide all questions of law de novo”). See also, e.g. , Origins 985; Mashaw, Rethinking Judicial Review of
Administrative Action: A Nineteenth Century Perspective, 32 Cardozo
L. Rev. 2241, 2243 (2011); Garrett, Legislating Chevron, 101
Mich. L. Rev. 2637, 2640 (2003); Molot, Reexamining Marbury in the Administrative State: A Structural and
Institutional Defense of Judicial Power over Statutory
Interpretation, 96 Nw. U. L. Rev. 1239, 1249 (2002); Anthony,
10 Admin. L. J. Am. U., at 9–10; Farina, Statutory
Interpretation and the Balance of Power in the Administrative
State, 89 Colum. L. Rev. 452, 473, and n. 85 (1989);
Starr, Sunstein, Willard, & Morrison, Judicial Review of
Administrative Action in a Conservative Era, 39 Admin. L. Rev.
353, 368 (1987) (remarks of Prof. Sunstein); Pierce & Shapiro,
Political and Judicial Review of Agency Action, 59 Texas
L. Rev. 1175, 1182 (1981); 4 K. Davis, Administrative Law
§30.01, pp. 190–191 (1958). 50 545 U.S.
967 (2005). 51 See, e.g. , In re Lovin , 652 F.3d 1349, 1353–1354 (CA Fed.
2011); Levy v. Sterling Holding Co. , 544 F.3d 493,
502–503 (CA3 2008). 52 18
U. S. C. §3553(a). 53 15
U. S. C. §16(e)(1). 54 See Perez , 575 U. S., at ___–___ (slip op., at
2–3). 55 United States v. Nixon , 418 U.S.
683 , 695–696 (1974). 56 Perez , 575 U. S., at ___
(Thomas, J., concurring in judgment) (slip op., at
16). 57 Ibid. ; see id. , at ___
(Scalia, J., concurring in judgment) (slip op., at 3) ( Auer lets agencies “use [interpretive] rules not just to advise the
public, but also to bind them”). 58 See INS v. Chadha , 462 U.S.
919 , 951, 954 (1983). 59 Brief
for Administrative Law Scholars as Amici Curiae 9–10,
n. 4. 60 See Perez , 575 U. S., at ___ (slip op., at 8); Marseilles Land & Water Co. v. FERC , 345 F.3d 916 , 920 (CADC 2003). 61 Perez , 575 U. S., at ___
(Scalia, J., concurring in judgment) (slip op., at 3). 62 Milner v. Department of
Navy , 562 U.S.
562 , 572 (2011). 63 McCarran, Improving “Administrative
Justice”: Hearings and Evidence; Scope of Judicial Review, 32
A. B. A. J. 827, 893 (1946). 64 H. R. Rep. No. 1980, 79th Cong.,
2d Sess., 44 (1946); accord, S. Rep. No. 752, 79th Cong., 1st
Sess., 28 (1945); 92 Cong. Rec. 5654 (1946) (statement of Rep.
Walter). See also Shepherd, Fierce Compromise: The Administrative
Procedure Act Emerges from New Deal Politics, 90 Nw. U.
L. Rev. 1557, 1662–1666 (1996). 65 Universal Camera , 340
U. S., at 490 (emphasis added). 66 Dickinson, Administrative Procedure
Act: Scope and Grounds of Broadened Judicial Review, 33
A. B. A. J. 434, 516 (1947). See also Origins
990–991 (critiquing the Attorney General’s characterization of the
APA as “inherently question begging” and unsupported by any
analysis). 67 Adler, 16 Geo. J. L. & Pub.
Pol’y, at 7; see Lost History 63; Pojanowski, 16 Geo. J. L.
& Pub. Pol’y, at 95–96. 68 Davis, 50 Colum. L. Rev., at
597–598; see also Davis, 57 Yale L. J., at 936, n. 72;
Newman, 35 Cal. L. Rev., at 521–522. 69 Hearings on H. R. 184 et al.
before the House Committee on the Judiciary, 79th Cong., 1st Sess.,
38 (1945); see Origins 988–989. 70 Patchak v. Zinke , 583
U. S. ___, ___ (2018) (plurality opinion) (slip op., at 5)
(quoting Massachusetts v. Mellon , 262 U.S.
447 , 488 (1923)). 71 Marbury v. Madison , 1
Cranch 137, 177 (1803); see also Wayman v. Southard ,
10 Wheat. 1, 46 (1825) (“[T]he legislature makes, the executive
executes, and the judiciary construes the law”); The Federalist No.
78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). 72 Miller v. Johnson , 515 U.S.
900 , 922 (1995). 73 See
Declaration of Independence ¶11. 74 Plaut v. Spendthrift
Farm , Inc. , 514 U.S.
211 , 220–221 (1995). 75 The
Federalist No. 78, at 466. 76 Palmore v. United
States , 411 U.S.
389 , 412 (1973) (Douglas, J., dissenting); see Oil States
Energy Services , LLC v. Greene’s Energy Group , LLC , 584 U. S. ___, ___ (2018) (Gorsuch, J.,
dissenting) (slip op., at 3) (“[W]hen an independent judiciary
gives ground to bureaucrats in the adjudication of cases, the
losers will often prove the unpopular and vulnerable”); United
States v. Hatter , 532 U.S.
557 , 568–569 (2001) (quoting John Marshall’s admonition that a
judge who may be called on to decide a dispute “ ‘between the
most powerful individual in the community, and the poorest and most
unpopular’ ” must be “ ‘perfectly and completely
independent, with nothing to influence or control him but God and
his conscience’ ” (alterations omitted)); Jackson, The Meaning
of Statutes: What Congress Says or What the Court Says, 34
A. B. A. J. 535, 536 (1948) (“[T]he interpretation
of [the laws’] fair meaning . . . should be made by
judges as independent of politics as humanly possible and not
serving the interests of the class for whom, or a majority by whom,
legislation is enacted”). 77 2
Records of the Federal Convention of 1787, p. 75 (M. Farrand
ed. 1911); see also Manning, 96 Colum. L. Rev., at
640–648. 78 United States v. Will , 449 U.S.
200 , 218 (1980). 79 See
The Federalist No. 81, at 482 (A. Hamilton). 80 Id. , at 483. 81 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , 458 U.S.
50 , 60 (1982) (plurality opinion). 82 Bank Markazi v. Peterson , 578 U. S. ___, ___ (2016) (slip op., at 12)
(alterations omitted). 83 Stern v. Marshall , 564 U.S.
462 , 483 (2011) (internal quotation marks
omitted). 84 Perez , 575 U. S., at ___
(slip op., at 2); see Chrysler Corp. v. Brown , 441 U.S.
281 , 295–296 (1979). To be sure, our precedent allowing
executive agencies to issue legally binding regulations to govern
private conduct may raise constitutional questions of its own. See, e.g. , Department of Transportation v. Association
of American Railroads , 575 U.S. 43, ___–___ (2015) (Thomas, J.,
concurring in judgment) (slip op., at 4–11). 85 Cox,
Judge Learned Hand and the Interpretation of Statutes, 60 Harv.
L. Rev. 370, 390 (1947). 86 Id. , at 390–391, and
n. 58; see also Kavanaugh, 129 Harv. L. Rev., at 2151 (in
pursuing their policy goals, “[e]xecutive branch agencies often
think they can take a particular action unless it is clearly
forbidden ”). 87 Plaut , 514 U. S., at 225
(quoting T. Cooley, Constitutional Limitations 95
(1868)). 88 Id. , at 95; see also Bank
Markazi , 578 U. S., at ___, n. 17 (slip op., at 12,
n. 17). 89 Ogden v. Blackledge , 2
Cranch 272, 277. 90 Cooley, supra , at
95. 91 Cf. Cary v. Curtis , 3 How. 236, 253, 257 (1845) (Story,
J., dissenting) (if the “right to interpret the laws” is taken away
from courts and “confided to an executive functionary,” then “the
judicial power, designed by the Constitution to be the final and
appellate jurisdiction to interpret our laws, is superseded in its
most vital and important functions”). 92 Marbury , 1 Cranch, at
177. 93 Arlington v. FCC , 569 U.S.
290 , 297 (2013) (emphasis added). 94 Clinton v. City of New
York , 524 U.S.
417 , 452 (1998) (Kennedy, J., concurring). 95 Marbury , 1 Cranch, at
163. 96 Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417, 417–418 (1899); see INS v. Cardoza-Fonseca , 480 U.S.
421 , 452–453 (1987) (Scalia, J., concurring in judgment)
(“Judges interpret laws rather than reconstruct legislators’
intentions”); H. Hart & A. Sacks, The Legal Process 1375 (1994)
(“Unenacted intentions or wishes cannot be given effect as
law”). 97 United States v. Woods ,
571 U.S. 31, 48 (2013). 98 O’Scannlain, “We Are All Textualists
Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s
L. Rev. 303, 304–305 (2017) (contesting the radical
indeterminacy of legal texts). 99 Id. , at 313; see Siegel,
Textualism and Contextualism in Administrative Law, 78 B. U.
L. Rev. 1023, 1057 (1998). 100 Larkin & Slattery, 42 Harv.
J. L. & Pub. Pol’y, at 647. 101 Ibid. 102 See
Criddle & Staszewski, Against Methodological Stare Decisis, 102
Geo. L. J. 1573, 1577, and n. 12 (2014); C. Oldfather,
Methodological Stare Decisis and Constitutional Interpretation, in
Precedent in the United States Supreme Court 135, 135–136 (C.
Peters ed. 2013). 103 Kozel, Statutory Interpretation,
Administrative Deference, and the Law of Stare Decisis, 97 Texas
L. Rev. 1125, 1159 (2019); see Raso & Eskridge, Chevron as a Canon, Not a Precedent: An Empirical Study of
What Motivates Justices in Agency Deference Cases, 110 Colum.
L. Rev. 1727, 1765–1766 (2010) (concluding that in practice,
this Court has not treated administrative-deference regimes such as Chevron and Auer as binding precedents). 104 South Dakota v. Wayfair , Inc. , 585 U. S. ___, ___ (2018) (slip
op., at 18). 105 See, e.g. , Alexander &
Prakash, Mother May I? Imposing Mandatory Prospective Rules of
Statutory Interpretation, 20 Const. Comment. 97 (2003); Elhauge,
Preference-Estimating Statutory Default Rules, 102 Colum.
L. Rev. 2027, 2109–2110, and nn. 231–233
(2002). 106 Pearson v. Callahan , 555 U.S.
223 , 233 (2009). 107 Arizona v. Gant , 556 U.S.
332 , 348 (2009) (quoting Lawrence v. Texas , 539 U.S.
558 , 577 (2003)). 108 Janus v. State , County , and Municipal Employees , 585 U. S. ___,
___–___ (2018) (slip op., at 34–35). 109 Brief for Administrative Law Scholars
as Amici Curiae 13. 110 Knick v. Township of
Scott , ante , at 22; see Janus , 585 U. S., at
___ (slip op., at 23). See also Lost History 54–92; Knudsen &
Wildermuth, 22 Geo. Mason L. Rev., at 658–664. 111 Hickman & Thomson, 103 Minn.
L. Rev. Headnotes, at 110. 112 Green v. Brennan , 578
U. S. ___, ___ (2016) (slip op., at 5); see, e.g. , National Assn. of Home Builders v. Defenders of
Wildlife , 551 U.S.
644 , 668–669 (2007) (construing regulation in light of text,
history, and canon against surplusage). 113 Woods , 571 U. S., at 48;
see also Bruesewitz v. Wyeth LLC , 562 U.S.
223 , 242 (2011); Jones v. United States , 526 U.S.
227 , 238 (1999); United States v. Mine Workers , 330 U.S.
258 , 281–282 (1947). 114 To
be sure, under Chevron U. S. A. Inc. v. Natural
Resources Defense Council , Inc. , 467
U.S. 837 (1984), we sometimes defer to an agency’s construction
of a statute . But there are serious questions, too, about
whether that doctrine comports with the APA and the
Constitution. See, e.g. , Pereira v. Sessions ,
585 U. S. ___, ___–___ (2018) (Kennedy, J., concurring); Michigan v. EPA , 576 U. S. ___, ___–___ (2015)
(Thomas, J., concurring); Perez , 575 U. S., at ___–___
(Scalia, J., concurring in judgment) (slip op., at 2–3).
Regardless, it would be a mistake to suppose that Auer is in
any way a “logical corollary to Chevron .” Decker , 568
U. S., at 620 (Scalia, J., concurring in part and dissenting
in part). 115 Arlington , 569 U. S., at
313 (Roberts, C. J., dissenting) (internal quotation marks
omitted). 116 Federal Maritime Comm’n v. South Carolina Ports Authority , 535
U.S. 743 , 755 (2002). 117 See
Office of the Federal Register, Code of Federal Regulations: Total
Pages 1938–1949, and Total Volumes and Pages 1950–2018,
http://www.federalregister.gov/uploads/2019/04/cfrTotalPages2018.pdf; United States v. Secretary , Fla. Dept. of
Corrections , 778 F.3d 1223, 1225 (CA11 2015). 118 Janus , 585 U. S., at ___
(slip op., at 45) (quoting Gant , 556 U. S., at
349). 119 Gonzales v. Oregon , 546 U.S.
243 , 269 (2006); see Christopher , 567 U. S., at 159
(applying Skidmore after concluding that agency’s
interpretation did not merit Auer deference). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–15

															_________________

															james l. kisor, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 26, 2019]

															Justice Kavanaugh, with whom Justice Alito
joins, concurring in the judgment.

															I agree with Justice Gorsuch’s conclusion that
the Auer deference doctrine should be formally retired. I
write separately to emphasize two points. First , I agree with The Chief Justice
that “the distance between the majority and Justice Gorsuch is not
as great as it may initially appear.” Ante, at 1 (opinion
concurring in part). The majority’s approach in Part II−B of its
opinion closely resembles the argument advanced by the Solicitor
General to “clarif[y] and narro[w]” Auer . Brief for
Respondent 15. Importantly, the majority borrows from footnote 9 of
this Court’s opinion in Chevron to say that a reviewing
court must “exhaust all the ‘traditional tools’ of construction”
before concluding that an agency rule is ambiguous and deferring to
an agency’s reasonable interpretation. Ante, at 14 (quoting Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc. , 467 U.S.
837 , 843, n. 9 (1984)). If a reviewing court employs all of the
traditional tools of construction, the court will almost always
reach a conclusion about the best interpretation of the regulation
at issue. After doing so, the court then will have no need to adopt
or defer to an agency’s contrary interpretation. In other words,
the footnote 9 principle, taken seriously, means that courts will
have no reason or basis to put a thumb on the scale in favor of an
agency when courts interpret agency regulations.

															Formally rejecting Auer would have been a
more direct approach, but rigorously applying footnote 9 should
lead in most cases to the same general destination. Umpires in
games at Wrigley Field do not defer to the Cubs manager’s in-game
interpretation of Wrigley’s ground rules. So too here.

															To be sure, some cases involve regulations that
employ broad and open-ended terms like “reasonable,” “appropriate,”
“feasible,” or “practicable.” Those kinds of terms afford agencies
broad policy discretion, and courts allow an agency to reasonably
exercise its discretion to choose among the options allowed by the
text of the rule. But that is more State Farm than Auer . See Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 (1983).

															In short, after today’s decision, a judge should
engage in appropriately rigorous scrutiny of an agency’s
interpretation of a regulation, and can simultaneously be
appropriately deferential to an agency’s reasonable policy choices
within the discretion allowed by a regulation. Second , I also agree with The Chief
Justice that “[i]ssues surrounding judicial deference to agency
interpretations of their own regulations are distinct from those
raised in connection with judicial deference to agency
interpretations of statutes enacted by Congress.” Ante, at
2. Like The Chief Justice, “I do not regard the Court’s decision”
not to formally overrule Auer “ to touch upon the latter
question.” Ibid.