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sailingaway
03-21-2013, 03:10 PM
The Supreme Court issued a ruling yesterday on a consolidated pair of cases that looked initially like a win for property rights. (Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center.) Interpreting Environmental Protection Agency authority, the Court held 7-1, with Justice Kennedy writing for the Court, Justice Scalia concurring in part and dissenting in part, and Justice Breyer recusing himself, that logging companies and Oregon forestry officials did not have to obtain EPA permits for storm-water runoff from logging roads, contrary to what the NEDC had argued and the Ninth Circuit below had held.

As so often happens, however, the underlying issues were far more complicated and important, involving basic administrative law questions and fundamental separation-of-powers principles. In particular, the question Scalia pressed was this: Should a court give deference—known as Auer deference—to an administrative agency’s interpretation of its own regulations? Bad enough that courts give excessive Chevron deference, as it’s known, to agency’s interpretations of congressional statutes when agencies write and enforce regulations pursuant to the statutes. When agencies, in addition, get not only to write but to interpret their own regulations, it’s a prescription for mischief, as Scalia made clear.....


While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers—that the power to write the law and the power to interpret it cannot rest in the same hands. “When the legislative and the executive powers are united in the same person … there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws.
And speaking to the mischief latent in Auer deference:


When an agency interprets its own rules, … then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. It is perfectly understandable for an agency to issue vague regulations if doing so will maximize agency power.
[in this case the court DID give deference]

Chief Justice Roberts, joined by Justice Alito, concurred in the Courts opinion, but wrote separately to say that Scalia “raises serious questions about the principle” that has come to be called Auer deference, adding that “it may be appropriate to reconsider that principle in an appropriate case.” But because the issue was not properly briefed and argued, “this is not that case.” Stay tuned. Given the vast reach of the modern executive state, this issue will not, and should not, go away.

http://www.cato.org/blog/reigning-modern-executive-state?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29