Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer. They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled. Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):
Seminole Rock and Auer require courts to give “controlling weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be “the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or inconsistent with the regulation.” Although Seminole Rock deference was initially applied exclusively “in the price control context and only to official agency interpretations,” this Court has since expanded it to many contexts and to informal interpretations.
Seminole Rock deference is constitutionally suspect. It 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.” This Court has never “put forward a persuasive justification” for Seminole Rock deference.
By all accounts, Seminole Rock deference is “on its last gasp.” Several Members of this Court have said that it merits reconsideration in an appropriate case. Even the author ofAuer came to doubt its correctness.
This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates. . . . Because this Court has passed up another opportunity to remedy “precisely the accumulation of governmental powers that the Framers warned against,” I respectfully dissent from the denial of certiorari.
Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies. We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government.