Government Regulation -- 2016

United Student Aid Funds, Inc. v. Bible   (U.S. Supreme Court)

To overturn Auer case deferring to agency interpretations of their own regulations

Courts routinely defer to federal agency interpretations of their own regulations. The cases in which this policy was adopted were Auer v. Robbins (1997) and Bowles v. Seminole Rock & Sand Co. (1945). Unfortunately, agency interpretations can be made in ways other than notice-and-comment rulemaking without input from the public or the regulated community. In this case, an agency interpreted one of its regulations in an amicus brief in response to a request from a judge. A set of federal appellate judges divided on how to interpret the regulation, and the deciding vote deferred to the agency. The losing party appealed to the Supreme Court, asking it to overturn Auer deference and let the courts decide for themselves whether an agency interpretation is reasonable.

The NAM filed an amicus brief urging the Court to review this case. We argued that courts were established to say what the law is, and the Administrative Procedure Act reserves to the courts the power to exercise ultimate interpretive authority. Deferring to agency interpretations is inconsistent with the allocation of powers in the Constitution, and undermines an important check on the excesses of the legislative and executive branches of government.

Allowing agencies this power may actually provide disincentives for regulatory clarity, thereby sacrificing notice and predictability in rulemaking. It also violates due process rights by turning conduct that complied with prior interpretations into a "federal felony and the basis of severe penalties in light of the Department's revised interpretation announced while the case was on appeal."

Unfortunately, on 5/16/16, the Court declined to hear this appeal.

Related Documents:
NAM amicus brief  (February 3, 2016)


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