Legislator, Interpreter, and Executor: Should Stare Decisis Protect Arbitrary Agency Reinterpretation?

Regulated persons and entities are affected when an agency reinterprets its regulations in a manner that changes settled understandings without using the mechanisms and safeguards provided by Congress in the Administrative Procedure Act (APA). Notice-and-comment rulemaking provides a check on regulatory overreach by requiring public participation and the development of an administrative record that facilitates judicial scrutiny of agency action. In Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), the Supreme Court cited no statute, precedent, constitutional provision, or any justification whatsoever to create from thin air an interpretive deference rule to agency regulatory interpretations, which allowed agencies to reinterpret vague rules without the public and judicial scrutiny required by the APA. Not only do vague regulations give the agency flexibility (which includes the ability to change a policy without comment or challenge), they are an impediment to the ability of regulated entities and persons to conform their conduct to the requirements of the law and to plan their business or personal lives. 

Issue Areas:

Limited Government

Case:

Kisor v. Wilkie, No. 18-15 (Supreme Court) (petition-stage)

Read the Amicus Brief:
Question(s) Presented:

Whether the Supreme Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which provided an unless “plainly erroneous” deference rule to agency regulatory interpretation of its own regulations.


Additional Background:

“The administrative state ‛wields vast power and touches almost every aspect of daily life.’” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts, C.J., dissenting) (quoting Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). “The canonical formulation of Auer deference is that [the Court] will enforce an agency’s interpretation of its own rules unless that interpretation is ‛plainly erroneous or inconsistent with the regulation.’” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 617 (2013) (Scalia, J., concurring in part, dissenting in part). If a regulation has multiple plausible readings, an agency’s preferred interpretaion, rather than the most logical, the one with the best linguistic meaning, or most legally relevant, will prevail. An executive branch agency will have displaced the judiciary’s role in scrutinizing executive agency claims of jurisdiction and authority. Id. The Court “offered no justification whatever” when it adopted this interpretive rule, and cited no statute, constitutional provision, or precedent, and advanced no logic to support this doctrine. Id. Further, the Auer deference conflicts with the plain language of Section 706 of the APA, which requires “the reviewing court [to] . . . determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. §706.

ALF’s Amicus Brief:

The ALF argues in an amicus brief that Auer and Bowles should be overruled as they allow circumvention of the safeguards mandated by the APA and the U.S. Constitution to protect the public from arbitrary executive rule making. (“[W]hen an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning . . . . It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well.”). This concentration of power invades what has for over two centuries been “emphatically the province and duty of the judicial department[:] to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Decker, 568 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (“For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean.”). The ALF asks the Supreme Court to grant certiorari to restore the separation of powers which the Constitution affected through its distinct allocation of the powers of law making, executing, and reviewing, by resuming the role which the Constitution and the APA clearly bestow to the courts.  

 

Status:

Supreme Court issued an opinion on Oct. 9, 2018 upholding the Auer deference although many Justices are open to narrowing or retiring the rule in the future.  (See Gorsuch, J., concurring “today’s decision is more a stay of execution than a pardon.”). Kisor v. Wilkie, 139 S. Ct. 2400, 2425 (2019).

Date Originally Posted: January 31, 2019

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