When Republicans confirmed Brett Kavanaugh to the Supreme Court, Trump supporters breathed a sigh of relief.
They figured a conservative majority on the Supreme Court was assured.
But that is all in danger as Brett Kavanaugh was just betrayed in this shocking fashion.
The Supreme Court just handed down another five to four decision.
However conservatives did not come out on top.
Chief Justice John Roberts sided with the court’s four liberals to uphold the Auer doctrine which holds that the judiciary should not overrule an agency’s interpretations of its own regulations.
This doctrine allows the government to grow beyond constitutional limits by allowing Congress to write vague laws that allows administration agencies to interpret and enforce the laws as they see fit.
Essentially, the judiciary allows the executive branch to function as the legislature.
Congress and the executive love this arrangement because it grants the executive more power and removes the legislature from being held accountable for the laws they write since another branch of government holds all the enforcement discretion.
In Kisor v. Wilkie, Secretary of Veterans Affairs James Kisor – a Vietnam veteran – originally put in a claim for disability benefits for Post Traumatic Stress Disorder back in 1982.
The VA denied the claim initially, but agreed to reopen the case in 2006.
At that point in time, the VA agreed he was eligible to receive disability benefits, but only from the time his case was reopened in 2006, not from when Kisor originally filed in 1982.
The court deferred to the VA’s reading of the statute under the Auer doctrine because the agency claimed the applicable law was ambiguous.
In a multi-part opinion, the court upheld Auer.
Left-wing Justice Elena Kagan delivered the majority opinion that was joined by liberals Stephen Breyer, Ruth Bader Ginsberg, and Sonia Sotomayor.
Justice Roberts wrote a separate concurrence where the Chief Justice tried to somewhat constrain Auer while keeping it in place.
“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,” Roberts wrote as his new and supposed “limiting” test on Auer.
This opinion brought back bad memories for conservatives.
Roberts pulled a similar stunt when he switched his vote to strike down Obamacare to instead upholding the socialist scheme.
In his majority opinion, Roberts upheld the argument made by conservatives that Obamacare violated the commerce clause because the government could not compel individuals to purchase products, but Roberts rewrote the law and ruled the individual mandate passed constitutional muster because it was a “tax” and not a penalty as the law plainly stated.
Justices Brett Kavanaugh, Neil Gorsuch, Samuel Alito and Clarence Thomas all voted to strike down Auer.
Justice Gorsuch dramatically wrote in his dissent that Roberts’ dissent left Auer “maimed and enfeebled — in truth, zombified.”
But even still, zombies are not dead.
And Auer remains on the books.
Conservative Revival will keep you up to date on any new developments in key Supreme Court cases.