Justice Thomas and Gorsuch Signal Serious Concerns Over Agency Deference

Date: March 22, 2018

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One of the primary reasons the NFIB supported Neil Gorsuch’s nomination to the Supreme Court was because of his past statements, as a judge on the Tenth Circuit Court of Appeals, signaling concerns over a perceived break-down in separation of powers. And notably, on March 19, 2018 Justice Gorsuch joined with Justice Clarence Thomas in dissenting from the Supreme Courts decision not to grant certiorari in Garco Construction Inc. v. Speer. We supported the Garco petition because the case called-in to question so-called “Auer deference,” which requires courts defer to federal agencies in interpreting ambiguous regulation. As we’ve argued in the past, Auer deference is deeply problematic and fundamentally incompatible with our constitutional system. As such, its somewhat refreshing to see Justice Gorsuch joining with Thomas in calling for the Court to reexamine Auer.

On the other hand, the Supreme Court’s decision to deny certiorari in this case is frustrating. As the Thomas dissent emphasizes: “This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates.” Indeed, in this case, military officials effectively modified the requirements of a contract by reinterpreting governing regulations, in a manner that amounted to an unfair surprise for the company.

Still, this is yet another sign that Auer deference may be on its “last leg.” And if Auer is thrown-out, it may only be matter of time until the Supreme Court reconsiders the related Chevron doctrine, which has led to an unprecedented ballooning of federal regulation over the past thirty years. As demonstrated in several major cases in recent years, the Court is open to reexamining past precedent where there are compelling grounds for believing the original decision wrong or unworkable. Most recently with the Supreme Court’s grant in Knick v. Township of Scott, the Court has agreed to reconsider a dubious thirty-two-year-old precedent, which property rights groups (including NFIB) have been chipping at for years. It just goes to show that it pays to continue pressing the issue with tenacity. So rest assured, NFIB Legal Center will continue in our efforts to encourage the courts to rethink their approach to regulatory issues.

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