Justice Clarence Thomas (2015). Credit: Diego M. Radzinschi/ ALM

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch on Monday chided their colleagues for passing up “another opportunity” to end the “constitutionally suspect” power of federal agencies to interpret their own regulations.

Thomas, joined by Gorsuch, dissented from the high court's decision not to review the case Garco Construction Inc. v. Speer. At the heart of the dispute between the construction company and the U.S. Army was a judicial doctrine known as “Auer deference,” which requires courts to give controlling weight to an agency's interpretation of its own regulations.

As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch was a leading critic of Auer and Chevron deference, the latter directing courts to defer to an agency's reasonable interpretation of its ambiguous statute.

Auer deference, Thomas wrote on Monday, quoting from prior decisions, “transfers 'the judge's exercise of interpretive judgment to the agency,' which is 'not properly constituted to exercise the judicial power.' It also undermines the judicial 'check' on the political branches by ceding the courts' authority to independently interpret and apply legal texts. And it results in an 'accumulation of governmental powers' by allowing the same agency that promulgated a regulation to 'change the meaning' of that regulation 'at its discretion.”

The judicial doctrine was established by the court in two decisions: Auer v. Robbins (1997) and Bowles v. Seminole Rock & Sand (1945). Thomas noted that several justices have said the doctrine should be reconsidered in an appropriate case. Besides Thomas and now Gorsuch, other justices who've questioned the doctrine included Chief Justice John Roberts Jr. and justices Samuel Alito Jr. and the late Antonin Scalia.

The Garco Construction case, Thomas said, would have been an “ideal” case to reconsider Auer deference.

Garco had a contract with the Army Corps of Engineers to build housing units on the Malmstrom Air Force Base in northern Montana. The company agreed in the contract to comply with all base access policies. The text of the access policy required a “wants and warrants” check on employees of Garco's subcontractor.

That had allowed employees with criminal histories to work on base, as long as there were no wants or warrants on them. But after construction began, the base interpreted its policy on “wants and warrants” to include “sex offenders, violent offenders, those who are on probation and those who are in a pre-release program.” The impact was to exclude many workers from the base despite having no wants or warrants on them.

The U.S. Court of Appeals for the Federal Circuit deferred to the base's interpretation of its access policy.

“While the military is far better equipped than the courts to decide matters of tactics and security, it is no better equipped to read legal texts,” Thomas wrote. The Supreme Court, he added, had passed up another chance to remedy “precisely the accumulation of governmental powers that the Framers warned against.”

William Consovoy and Consovoy McCarthy Park represented Garco.

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