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SCOTUS: Agency Deference Unchecked Danger to Constitution

September 14, 2017

 

WASHINGTON, DC:  Urging the U.S. Supreme Court to stop lower courts from deferring to agency interpretations of their own ambiguous regulations, SLF filed an amicus brief in Garco Construction v. Army.

 

At issue in Garco Construction is the interpretation of a regulation which prohibits subcontractors from using certain personnel who have criminal records. 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 NFIB Small Business Legal Center, the Cato Institute, the Buckeye Institute, the Beacon Center of Tennessee and Mississippi Justice Institute, 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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