NFIB: Supreme Court Missed Opportunity to Provide Small Businesses Regulatory Certainty in Kisor v. Wilkie

Date: June 26, 2019

Washington, D.C. (June 26, 2019) – NFIB and America’s small business owners are disappointed with the United States Supreme Court’s decision in Kisor v. Wilkie today. NFIB filed an amicus brief in this case, arguing that Auer deference is an unconstitutional violation of the separation of powers between the executive and judiciary branches.

“The Supreme Court missed an opportunity today to strike down an unconstitutional, judicially-created doctrine that gives unaccountable bureaucrats the benefit of the doubt when deciding what their regulations do or do not require of small businesses and, indeed, all Americans,” said Karen Harned, Executive Director of the NFIB Small Business Legal Center. “The judicial deference doctrine that the Court upholds today allows federal regulators to write and change the very rules they were charged with enforcing with little meaningful accountability. Although we appreciate the Supreme Court further limiting how often judges can defer to federal agencies, by letting Auer remain the law of the land, the Court endorses a system that incentivizes federal agencies to write unclear rules. As a result, today’s decision does little to provide small businesses the certainty they need in order to plan for the future and grow.”

Today’s decision limits the scope but does not overturn the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts should defer to federal agencies when interpreting ambiguous regulations. Since then, “Auer deference” has been criticized because it encourages agencies to write ambiguous regulations and to later pronounce interpretations without going through the notice-and-comment process. Today’s ruling will allow agencies to receive such deference but in fewer circumstances than before.

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and in the U.S. Supreme Court.

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