On Feb. 15, the U.S. Supreme Court considered a petition for certiorari urging the Supreme Court to get rid of the administrative law doctrine known as Auer deference. This doctrine gives agencies a blank check to interpret their own regulations, allows them to avoid notice and comment rulemaking and its provision for fair warning, and wrests from the judiciary its constitutional and statutory obligations to say what the law is. The court should take the case and discard Auer.

The Case

In the petition before the court, Garco Construction was awarded an August 2006 contract at Malmstrom Air Force Base in Great Falls, Montana. Given the limited labor pool, Garco’s subcontractors often employed individuals with criminal backgrounds, including workers from Great Falls Pre-Release Center, a facility that helps prisoners transition back to society. When the contract was awarded, the “base access regulation” provided that workers’ names would be checked against the National Crime Information Center system “for wants and warrants.”