The Cobra Effect: <i>Kisor</i>, Roberts, and the Law of Unintended Consequences

Abstract

With its decision in Kisor v. Wilkie in 2019, the U.S. Supreme Court was expected to overturn Auer v. Robbins, under which courts are to defer to agencies’ interpretations of their own regulations. (This was an expected precursor to the Court eventually overturning Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., which prescribes judicial deference to agency interpretations of statutes the agency administers.) The Court instead chose to limit but not overturn Auer, and leave Chevron untouched. This result leaves lower courts with the challenge of determining when and how to properly apply Auer deference. But the Court’s decision in Kisor ultimately illustrates the law of unintended consequences, often referred to as “the cobra effect.” Because the Court has faced criticism for disregarding the doctrine of stare decisis in several recent decisions, the Chief Justice likely cast the decisive vote in Kisor to avoid once again overturning established law. Thus, Kisor represents Roberts acting in his role as steward of the Court’s institutional reputation. But while Roberts is right to be concerned about stare decisis and the Court’s reputation, his vote in Kisor, and the opinion it produced, now leaves lower courts with a doctrine of judicial deference in Auer that is difficult, if not impossible, to apply. This note will demonstrate that the Court's decision in Kisor likely did more damage than good to the Court’s reputation, and that the Court ought to overturn Auer once and for all.