SCOTUS: Fed Agencies Continue to Make Own Law, and Courts Should Not Defer to Them

UPDATE (1/31/19): Today SLF filed another amicus brief in Kisor v. Wilkie urging the U.S. Supreme Court to overrule Auer and Seminole Rock.

As SLF General Counsel Kim Hermann explains over on SCOTUSblog, a number of Supreme Court opinions concurring and dissenting suggest that the Court will overrule Seminole Rock/Auer deference for two key reasons: (1) Seminole Rock/Auer deference violates separation of powers principles, and (2) Seminole Rock/Auer deference allows federal agencies to bind the public without following the Administrative Procedure Act. The Court’s decision to finally revisit these cases gives us hope that Seminole Rock/Auer deference truly is, as Justice Thomas one put it, on its last gasp.

Click here for SLF’s Supreme Court merits amicus brief

UPDATE (12/10/18): The Supreme Court agreed to hear Kisor v. Wilkie and re-examine the most constitutionally suspect of all the deference doctrines. Under Auer v. Robbins and Bowles v. Seminole Rock, courts give “controlling weight” to a federal agency’s interpretation of its own regulations rather than applying the court’s independent judgment to interpret the regulations.

The courts initially only abrogated their judicial power in challenges to price controls, but Seminole Rock/Auer deference quickly reached official agency interpretations and informal interpretations, including internal memorandums and “dear colleague” letters. With the administrative state touching almost every aspect of life, the time has come to revisit Auer and Seminole Rock.

WASHINGTON, DC: Southeastern Legal Foundation today filed an amicus brief in Kisor v. Wilkie to once again urge the Supreme Court to stop federal courts from deferring to agency interpretations of their own ambiguous regulations. At its simplest, at issue in Kisor is the interpretation of a regulation that determines when veterans may or may not receive benefits for treatment of PTSD. As explained in SLF’s brief, the particular regulation and interpretation at issue is somewhat irrelevant to the issue presented to the Court – should courts allow agencies to make, interpret, and adjudicate their own rules? The only constitutional answer to that question is no. However, as a result of two Supreme Court cases Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997), they have been allowed to do so now for decades.

Several of the Justices have called for the Court to abandon Seminole Rock/Auer deference because it raises serious constitutional questions and disrupts the balance of power our Founding Fathers so carefully crafted. In its amicus brief, which was joined by the Beacon Center of Tennessee, SLF urges the Justices to grant the petition and restore the checks and balances provided for in our Constitution and the Administrative Procedure Act.

Click here for SLF's Supreme Court amicus brief

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