federal agency deference

In an amicus brief in PDR Network, LLC v. Carlton & Harris Chiropractic Inc. the State and Local Legal Center (SLLC) argues that federal courts should be able to refuse to apply federal agency orders which they deem inapplicable even if the orders are covered by the Hobbs Act. While case sounds obscure, numerous Federal Communications Commission (FCC) orders are covered by the Hobbs Act including the small cell order, which preempt local regulations to facilitate the deployment of small cells for 5G.

The Hobbs Act vests the federal courts of appeals with “exclusive jurisdiction” to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain orders made by the FCC and orders of the Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, and others.

According to one lower court the Hobbs Act “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform, nationwide interpretation of the federal statute by the centralized expert agency.”

The State and Local Legal Center (SLLC) has been waiting for this day for a long time. In Kisor v. Wilkie the Supreme Court will decide whether to overturn Auer deference to federal agencies.

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to a federal agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).

State and local governments have long been critical of Auer deference of a number of reasons. First, it gives agencies a lot of authority in every area in which any agency regulates. Second, Auer deference negatively affects state and local governments because they are regulated by federal agencies and regulate in the same space as federal agencies.

The Court’s grant of this petition isn’t all that surprising. Neither will it be surprising if the Court overturns Auer deference. Recently, all five of the conservative Justices, except Justice Kavanaugh—perhaps only due to his short tenure on the Court, have either written or joined an opinion criticizing Auer deference or agency deference more generally.

The Supreme Court’s 2016-2017 docket is now set. The Court is still down a Justice but has accepted as many cases as usual (about 75). In theory all the cases discussed below will be decided by June 30, 2017. The Court may decide to rehear tied (4-4) cases next term, when a new Justice will presumably join the bench.

This articles covers cases of interest to the states which the Court agreed to hear this term accepted after September 15, 2016. Here is a summary of cases of interest to the states which the Court agreed to hear before September 15, 2016.

State and local governments would not be disappointed if the Supreme Court overturned Chevron v. NRDC (1984). While overturning Chevron isn’t on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.   

In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power. 

The State and Local Legal Center (SLLC) for the first time ever has asked the Supreme Court to accept and decide a case. The SLLC is asking the Court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies.  

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to an agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).