Swordsmyth
03-28-2019, 08:27 PM
The Supreme Court grappled with a major question of agency law Wednesday, hearing what is likely the first in a series of cases challenging the federal bureaucracy’s power.
Wednesday’s dispute — involving a Vietnam War veteran called James Kisor who lost his bid to collect benefits from the Department of Veterans Affairs — concerned a rule of agency law called Auer deference. The 1997 Auer v. Robbins decision provides that a court should defer to an agency’s interpretation of its own regulation, unless it is obviously wrong.
By argument’s end, the Court’s conservative majority seemed poised to rein Auer in, but it was not clear they would overturn it altogether.
Business groups and conservative critics of the administrative state have waged a steady campaign against Auer in recent years. These critics accuse agencies of using Auer deference to expand their own power.
By this telling, an agency will intentionally issue a vague regulation, construe that regulation to its own benefit, then use Auer to command judicial fealty to its decision.
“Auer is particularly troublesome when agencies resolve regulatory ambiguities in favor of their own pecuniary self-interest,” Kisor’s opening brief (https://www.documentcloud.org/documents/5782290-Petitioner-Brief-Kisor-v-Wilkie.html) at the high court reads.
Ambiguous regulations, Kisor adds, leaves the public confused as to what is and isn’t permissible, which violates the basic guarantee of fair notice.
Wednesday’s case may be the opening salvo in a lengthy crusade against the administrative state on the Supreme Court. The Trump administration, for whom deregulation is a high priority, enthusiastically supports that effort.
Speaking at the 2018 Conservative Political Action Conference (CPAC), former White House counsel Don McGahn said the administration was drawn to then-Judge Neil Gorsuch (https://dailycaller.com/2018/02/22/cpac-white-house-counsel-judicial-selection/) in part because of an opinion he wrote on the 10th U.S. Circuit Court of Appeals criticizing another agency deference doctrine called Chevron.
The administration made a qualified defense of Auer Wednesday, saying the Court should restrict its use, as opposed to overturning it. Justice Elena Kagan expressed frustration that no party before the Court was making a full defense of Auer deference.
“There might be a problem of a lack of adversarialness here,” she said.
Gorsuch was the leading Auer critic on the bench during Wednesday’s proceedings. Among other arguments, Gorsuch said questions of law should be decided by courts, not agencies.
“That seems to me a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran, who may not be the most popular or able to capture an agency the way many regulated entities can today,” he said.
Elsewhere, Gorsuch noted that the Court has already limited Auer in several respects. That being so, he reasoned, it might make sense to jettison Auer altogether, instead of continuously limiting its application.
“How much further should we go?” Gorsuch asked. “Or should we just give up on it altogether?”
More at: https://truepundit.com/supreme-court-hears-opening-skirmish-in-war-against-the-administrative-state/
Wednesday’s dispute — involving a Vietnam War veteran called James Kisor who lost his bid to collect benefits from the Department of Veterans Affairs — concerned a rule of agency law called Auer deference. The 1997 Auer v. Robbins decision provides that a court should defer to an agency’s interpretation of its own regulation, unless it is obviously wrong.
By argument’s end, the Court’s conservative majority seemed poised to rein Auer in, but it was not clear they would overturn it altogether.
Business groups and conservative critics of the administrative state have waged a steady campaign against Auer in recent years. These critics accuse agencies of using Auer deference to expand their own power.
By this telling, an agency will intentionally issue a vague regulation, construe that regulation to its own benefit, then use Auer to command judicial fealty to its decision.
“Auer is particularly troublesome when agencies resolve regulatory ambiguities in favor of their own pecuniary self-interest,” Kisor’s opening brief (https://www.documentcloud.org/documents/5782290-Petitioner-Brief-Kisor-v-Wilkie.html) at the high court reads.
Ambiguous regulations, Kisor adds, leaves the public confused as to what is and isn’t permissible, which violates the basic guarantee of fair notice.
Wednesday’s case may be the opening salvo in a lengthy crusade against the administrative state on the Supreme Court. The Trump administration, for whom deregulation is a high priority, enthusiastically supports that effort.
Speaking at the 2018 Conservative Political Action Conference (CPAC), former White House counsel Don McGahn said the administration was drawn to then-Judge Neil Gorsuch (https://dailycaller.com/2018/02/22/cpac-white-house-counsel-judicial-selection/) in part because of an opinion he wrote on the 10th U.S. Circuit Court of Appeals criticizing another agency deference doctrine called Chevron.
The administration made a qualified defense of Auer Wednesday, saying the Court should restrict its use, as opposed to overturning it. Justice Elena Kagan expressed frustration that no party before the Court was making a full defense of Auer deference.
“There might be a problem of a lack of adversarialness here,” she said.
Gorsuch was the leading Auer critic on the bench during Wednesday’s proceedings. Among other arguments, Gorsuch said questions of law should be decided by courts, not agencies.
“That seems to me a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran, who may not be the most popular or able to capture an agency the way many regulated entities can today,” he said.
Elsewhere, Gorsuch noted that the Court has already limited Auer in several respects. That being so, he reasoned, it might make sense to jettison Auer altogether, instead of continuously limiting its application.
“How much further should we go?” Gorsuch asked. “Or should we just give up on it altogether?”
More at: https://truepundit.com/supreme-court-hears-opening-skirmish-in-war-against-the-administrative-state/