Justices Thomas and Gorsuch Question Deference to Agency Interpretations in Dissent
Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer. They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole
Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled. Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):
Seminole Rock and Auer require courts to give “controlling
weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be
“the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or
inconsistent with the regulation.” Although Seminole Rock deference
was initially applied exclusively “in the price control context
and only to official agency interpretations,” this Court has
since expanded it to many contexts and to informal interpretations.
Seminole Rock deference is constitutionally suspect. It 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.” This Court has never
“put forward a persuasive justification” for Seminole Rock
deference.
By all accounts, Seminole Rock deference is “on its last
gasp.” Several Members of this Court
have said that it merits reconsideration in an appropriate
case. Even the author of Auer came to doubt its
correctness.
This would have been an ideal case to reconsider Seminole
Rock deference, as it illustrates the problems that the
doctrine creates. . . . Because this Court has passed up another opportunity
to remedy “precisely the accumulation of governmental
powers that the Framers warned against,” I respectfully dissent from the denial of
certiorari.
Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies. We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government.
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