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In veteran's disability case, Supreme Court considers junking longtime deference to federal agencies
The Supreme Court debated getting rid of a longtime precedent written by Justice Scalia. There was a twist
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Courts & Law
In veteran’s disability case, Supreme Court considers junking longtime deference to federal agencies
By Robert Barnes
Reporter covering the U.S. Supreme Court
March 27 at 5:49 PM
The Supreme Court debated Wednesday whether to overturn an important decision written by Justice Antonin Scalia for a unanimous court 22 years ago. ... There was a twist.
At the oral argument, it was the late justice’s most devoted conservative acolytes who were anxious to junk Auer v. Robbins, which says judges generally should defer to a federal agency’s interpretation of its regulations.
It was the liberal justices who were vociferous in their unwillingness to let Auer go without a fight, saying it was an essential component of judicial humility and deference to expertise.
“I want to parody it, but, I mean, this sounds like the greatest judicial power grab since Marbury versus Madison,” said Justice Stephen G. Breyer, referring to the 1803 decision that established the principle of judicial review of federal laws. ... He added, to laughter: “Which I would say was correctly decided.”
What has changed since Scalia’s 1997 decision is a growing concern in conservative legal circles that what is called “Auer deference” and other doctrines like it give too much power to government agencies, who use it to the detriment of business, regulated industries and ordinary people.
....
For once, the liberal justices were more aligned with the Trump administration’s solicitor general, Noel J. Francisco. He said the precedents should remain in place but judges should do more to employ standard review procedures and ensure the regulation in question was genuinely ambiguous. ... Francisco’s biggest antagonist was Justice Neil M. Gorsuch, who in the past has said deference to agencies threatened the separation of powers.
....
The case is Kisor v. Wilkie.
Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. Follow https://twitter.com/scotusreporter
In veteran’s disability case, Supreme Court considers junking longtime deference to federal agencies
By Robert Barnes
Reporter covering the U.S. Supreme Court
March 27 at 5:49 PM
The Supreme Court debated Wednesday whether to overturn an important decision written by Justice Antonin Scalia for a unanimous court 22 years ago. ... There was a twist.
At the oral argument, it was the late justice’s most devoted conservative acolytes who were anxious to junk Auer v. Robbins, which says judges generally should defer to a federal agency’s interpretation of its regulations.
It was the liberal justices who were vociferous in their unwillingness to let Auer go without a fight, saying it was an essential component of judicial humility and deference to expertise.
“I want to parody it, but, I mean, this sounds like the greatest judicial power grab since Marbury versus Madison,” said Justice Stephen G. Breyer, referring to the 1803 decision that established the principle of judicial review of federal laws. ... He added, to laughter: “Which I would say was correctly decided.”
What has changed since Scalia’s 1997 decision is a growing concern in conservative legal circles that what is called “Auer deference” and other doctrines like it give too much power to government agencies, who use it to the detriment of business, regulated industries and ordinary people.
....
For once, the liberal justices were more aligned with the Trump administration’s solicitor general, Noel J. Francisco. He said the precedents should remain in place but judges should do more to employ standard review procedures and ensure the regulation in question was genuinely ambiguous. ... Francisco’s biggest antagonist was Justice Neil M. Gorsuch, who in the past has said deference to agencies threatened the separation of powers.
....
The case is Kisor v. Wilkie.
Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. Follow https://twitter.com/scotusreporter
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