Justice Roberts Straddles the Middle as Gorsuch Questions Federal Regulatory Power
U.S. Supreme Court might not be closing the door just yet on deference to regulators.
March 27, 2019 at 03:03 PM
4 minute read
If you thought Wednesday's U.S. Supreme Court argument in Kisor v. Wilkie would definitely foreshadow the next step in the Trump era dismantling of the administrative state, think again.
Several justices, along with U.S. Solicitor General Noel Francisco, expressed concern about overturning two precedents that direct courts to defer to an agency's interpretation of its own ambiguous regulations. That level of deference, dubbed “Auer deference” after the 1997 Auer v. Robbins decision, has been attacked by conservatives and business organizations for giving too much power to regulatory agencies.
But Francisco said that the other precedent, Bowles v. Seminole Rock & Sand, a 1945 precursor of Auer, carries with it “significant practical benefits,” including national uniformity, maintaining reliance interests and political accountability. Conservative justices, notably Neil Gorsuch and Brett Kavanaugh, pushed back against Francisco. Chief Justice John Roberts Jr., who asked questions that did not tip his hand, may be the swing vote on the issue.
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