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AG Derek Schmidt: Supreme Court rulings grant federal agencies power beyond constitutional limits, should be overturned

Release Date: Feb 01, 2019

TOPEKA – (February 1, 2019) – Kansas Attorney General Derek Schmidt is urging the U.S. Supreme Court to overturn two prior rulings that expand the scope of the executive branch’s power beyond constitutional limits and deprive states of constitutional safeguards from federal overreach.

Schmidt, along with 15 other state attorneys general, yesterday filed a legal brief in the U.S. Supreme Court arguing the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., two existing opinions directing lower courts to side with a federal agency’s interpretation of its own ambiguous regulation when in conflict with state law. The brief cites past examples where courts have invoked the rule outlined in the Auer and Bowles cases to nullify state laws in favor of agency interpretations, effectively creating an administrative state engaged in unconstitutional lawmaking.

Citing their pronounced interest in cases that implicate federalism and the constitutional separation of powers, the state attorneys general wrote in the brief that the rule uniquely harms the states, “[giving] federal agencies a judicially created power to bind the States to ad hoc interpretations of their own ambiguous regulations.”

The attorneys general said in addition to striking a blow to state sovereignty, the rule is bad for the American public, subjecting it to regulatory interpretations with no prior notice of an agency’s views or a chance to help shape them. 

In the underlying case, James Kisor, a veteran Marine of the Vietnam War, has sued the U.S. Department of Veterans Affairs arguing that Auer and Bowles should be overturned after the agency issued an interpretation of the definition of “relevant” as it pertains to documentation presented by Kisor in his application for certain disability benefits related to his service in Vietnam.

The case is Kisor v. O’Rourke, No. 18-15. A copy of the states’ brief is available at

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