Justices Thomas and Gorsuch Call for Curbs on Federal Agency Power
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.
March 19, 2018 at 02:11 PM
4 minute read
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.
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All‘Really Deflating’: Judges React to Biden Threat to Veto New Judgeships Bill
Justices Consider Scope of Corporate Remedies for Trademark Infringement
Albertsons Gives Up on $25B Merger, Sues Kroger Seeking 'Billions of Dollars'
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250