Symposium: Reverse Seminole Rock and Auer (SCOTUS)

[Elderberry]

SCOTUSblog by Elizabeth Murrill 1/30/2019

Elizabeth Murrill is the solicitor general of Louisiana, which joined Utah and 17 other states in a cert-stage amicus brief urging the court to grant Kisor v. Wilkie and overrule Seminole Rock and Auer.

To build support for the proposed Constitution, Alexander Hamilton in Federalist No. 17 reassured the people of New York that “t will always be far more easy for the State governments to encroach upon the national authorities, than for the national government to encroach upon the State authorities.” Such assurances were critical to obtaining the states’ support and willingness to ratify what was then an experiment in self-governance. Bowles v. Seminole Rock and Auer v. Robbins judicially created power to bind the states to a federal agency’s ad hoc interpretations of the agency’s own ambiguous regulations. This not only belies Hamilton’s promise but also fundamentally reshapes the bargain between the states and the federal government.

Seminole Rock and Auer allow federal agencies to bind the public to informal rules adopted without following the Administrative Procedure Act. The public is then governed by agency caprice, with no prior notice of an agency’s views or any opportunity to shape them or address their impact. It is hard to think of a better deal for regulators, who can unilaterally relieve themselves of the hassle of complying with the APA. But allowing agencies to modify their policies through informal guidance can dramatically alter long-settled expectations and fundamentally change federal-state partnerships, creating special problems for the states.

When policies and conditions that apply to spending clause legislation change, millions in taxpayer dollars and state infrastructure spending may be affected. Billions of federal dollars are distributed annually by the Department of Education under Title IX and the Individuals with Disabilities Education Act. Congress is authorized to spend these funds under the spending clause. Virtually every university, technical school, public school system, some private schools, and afterschool programs receive these funds, directly or indirectly, and are affected by changes to DOE guidance. Medicaid is another important federal spending clause program, as are many federal highway programs. State legislatures take into account the receipt of these funds from long-established programs when they construct state budgets and draft state laws. Withdrawing Title IX and IDEA funds would shut down a state’s entire public-school system. Loss of federal highway funds could trigger defaults on bond obligations. And loss of health-care funding would shut down state Medicaid programs, leaving hundreds of thousands of people without a safety net for health care.

Besides threatening states with unilateral changes to well-established programs, Seminole Rock and Auer deference also create broad separation of powers concerns. When courts blindly defer to an agency’s interpretation of its own vague or ambiguous regulations, they not only deepen a legal defect created by the agency but create a new one by setting in motion an executive branch power loop that cannot be breached. Executive branch agencies have no legislative powers – the power to make law is reserved to the legislative branch, a rule so basic we all learned it in middle school. But an agency exercises a limited measure of lawmaking power when it is permitted to issue rules and regulations. The purpose of such a legislative delegation is to allow the agency to further clarify how it will implement laws and establish ground rules the agency applies to those it regulates. It furthers the goal of transparency between those in power and those subjected to it.

More: https://www.scotusblog.com/2019/01/symposium-reverse-seminole-rock-and-auer/#more-279131

[Elderberry]

The Time Has Come to Overrule Auer
By F. William Brownell & Henry V. Nickel on January 22, 2019
https://www.huntonnickelreportblog.com/2019/01/the-time-has-come-to-overrule-auer/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

According to the dictionary, a phrase is “ambiguous” if it has more than one meaning.
Chevron[1] is frequently cited for the proposition that the presence of “ambiguity” gives an agency the authority to interpret the statute to eliminate the ambiguity. A better view of Chevron is that only the Courts may resolve statutory ambiguity through interpretation. When faced with statutory terms that may be given more than one meaning, courts must determine, applying canons of statutory construction, what Congress has resolved, what Congress has given the Agency discretion to resolve, and what ascertainable standards have been established by Congress to govern the exercise of discretion by the Agency. In other words, Chevron contemplates that the Court declare what the law requires, including the scope of discretion afforded an agency to make policy choices that give content to broad statutory terms.

This view of Chevron avoids, as Justice Thomas cautioned, “giv[ing] the ‘force of law’ to agency pronouncements on matters of private conduct as to which Congress did not actually have an intent.” Michigan v. EPA, 135 S.Ct. 2699, 2713 (2015) (Thomas, J. concurring). Chevron, properly construed, gives the judiciary the last word on interpretation of the law and recognizes the responsibilities and limitations on Agency policy choices made in implementation of the law. As so understood, the Chevron doctrine avoids constitutional infirmity.

While Chevron may be construed to avoid constitutional separation of powers problems, the Auer[2] and Seminole Rock[3] decisions requiring judicial deference to agency interpretations of ambiguous regulations cannot be construed in a way that avoids serious constitutional issues.