The Supreme Court has a great chance to fix a major mistake it made and deal a blow to government corruption

Published January 25th, 2019 by Budd-Falen Law Offices, L.L.C.


The Supreme Court’s decision to accept Kisor v. O’Rourke could severely limit the power of federal agencies.

For any American who is tired of a faceless bureaucrat controlling your life, the United States Supreme Court gave you an early Christmas present when they announced that they will hear a case that could drastically scale back the power of federal agencies. The case deals with Mr. Kisor, a Marine veteran, who sought disability benefits for his service-related post-traumatic stress disorder (PTSD). Although this case is a compelling story of a Marine veteran trying to receive benefits he was entitled to, this case has far reaching implications that affect every American, especially businesses and property owners. The reason this case is so important is that it is an opportunity for the Supreme Court to eliminate Auer Deference. Auer Deference is a rule the Supreme Court made in the 90s that federal agencies use to create a cocoon of unlimited and unsupervised power for themselves. These agencies can then use that power to control the lives of every American without any real oversight from the court systems or elected officials.

Auer Deference essentially requires a court to enforce an agency’s interpretation of its own rules, unless that interpretation is “plainly erroneous.” To understand how Auer Deference works it is important to understand how regulations are made.

Essentially regulations are made when Congress decides in a law that they want an agency to be in charge of a certain issue. For example, Congress in the 70s knew that it wanted to take steps to protect the environment, but it did not want the political ramifications of sometimes choosing to protect the environment by harming landowners and businesses. So instead of passing laws that clearly laid out how it wanted to protect the environment, Congress passed laws like the Clean Air Act, the Endangered Species Act, and the Clean Water Act, that were intentionally vague, and gave agencies like the EPA, the US Fish and Wildlife Service, and the US Forest Service the power to interpret and create regulations to protect the environment.

When Congress gives an agency the power to regulate something, they then have the authority to draft regulations laying out the rules and standards for the particular issue. Auer Deference incentivizes those agencies to draft obscure regulations which they will then be able to interpret. Then, if someone challenges the agency’s interpretation of a regulation, the court will automatically rule in the agency’s favor, unless the person can prove that the rule is “plainly erroneous.” Having to prove that a rule is “plainly erroneous” is nearly impossible. So an agency could create an absurd interpretation of a regulation it intentionally left vague, and there would be no recourse or protection against the agency enforcing that interpretation. Essentially, Auer Deference allows the people writing the rules to also interpret the rule (or in other words, the patients are running the rulemaking asylum).

Although there are numerous examples of how Auer Deference harms the rights of Americans daily, a practical example of an agency using Auer Deference can be found in the Endangered Species Act. When deciding what areas should be designated as critical habitat, the US Fish and Wildlife Service created a regulation stating, “the Secretary shall focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species.” The regulations however do not define “essential to the conservation of the species.” Due to the ambiguity as to what is actually “essential to the conservation of the species,” the Fish and Wildlife Service has used the ambiguity to unilaterally designate critical habitat wherever they want, even stating that critical habitat did not have to actually be habitable by the endangered species.

The Fish and Wildlife Service’s liberal use of “critical habitat” was the primary issue in the Dusky Gopher Frog case. In that case the agency interpreted its own rules as to what can be designated as critical habitat and determined that certain land in Louisiana, that the dusky gopher frog could not viably live on, was listed as critical habitat for the species. Since the Fish and Wildlife Service were the “experts” the district court and the Fifth Circuit both used Auer Deference to rule in favor of the Fish and Wildlife Service that critical habitat did not have to be habitable. Although the Supreme Court luckily reversed the Fifth Circuit and ruled that critical habitat had to actually be habitable, the decision was sent back to the Fifth Circuit. Due to Auer Deference, the Fifth Circuit could conceivably rule in favor the Fish and Wildlife Service and designate uninhabitable land as critical habitat.

In the end, Justice Scalia best described the problem with Auer Deference when he wrote, “Auer deference… contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.” Or in other words, the greatest harm that Auer Deference creates is that it gives the power of interpreting the law to the very same people who write the law. Such power naturally can create corruption. This corruption manifests in federal agencies creating intentionally vague regulations that nobody can follow in order to allow government bureaucrats to write the laws themselves on a case-by-case basis. Thankfully, it appears that the US Supreme Court recognizes the dangers of Auer Deference and will hopefully eliminate it.

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Conner Nicklas is an associate attorney at the Falen Law Offices.


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