NFIB Files Amicus Brief in Kisor v. Wilkie, Urging Supreme Court to Resolve Uncertainty in Auer Deference

Date: January 31, 2019

Washington, D.C. (January 31, 2019) – NFIB filed an amicus brief in the case of Kisor v. Wilkie today, arguing that Auer deference, in which federal courts defer to a federal agency’s interpretation of its own regulation, is an unconstitutional violation of the separation of powers between the executive and judiciary branches.

“Small business owners depend on predictable, clear, and reliable regulations when it comes to running their businesses,” said Karen Harned, Executive Director of the NFIB Small Business Legal Center. Auer deference, which the United States Supreme Court is considering overturning in Kisor v. Wilkie, stacks the deck against businesses and others, undermining predictability by allowing agencies to write unclear rules that can be interpreted in a myriad of ways. Small businesses already face uncertainty from market forces, third-party actions, and many other variables. We urge the Supreme Court to end Auer deference and help provide small businesses with much-needed relief from this regulatory uncertainty.”

Kisor v. Wilkie primarily concerns Auer deference, which allows federal agencies to alter prior regulatory interpretations without public notice or comment. Under Auer deference, administrative agencies are afforded too much power since they essentially become the lawmakers, judges, and enforcers of the laws they are tasked with implementing.

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.

To arrange an interview with Harned, please contact Stephanie Marrs at 202-314-2027.

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