faulkFeatured Expert Column − Complex Serial and Mass Tort Litigation

Richard O. Faulk, Hollingsworth LLP*

 

“It is emphatically the province and duty of the Judicial Department to say what the law is.”
Marbury v. Madison, U.S. 137, 177-78 (1803) (per Marshall, C.J.)

Judicial deference to agency interpretations of statutes and regulations is nothing new—but a trend toward more critical review is emerging. In the October 2014 term of the United States Supreme Court alone, three serious concerns about deferential review were recognized:

  • First, in King v. Burwell, the Court refused to defer to the Internal Revenue Service’s interpretations of the Affordable Care Act—because Congress did not expressly delegate interpretive power regarding this question of “deep economic and political significance” to the IRS, and because the IRS has no special competence in health care issues.
  • Second, in Perez v. Mortgage Bankers Ass’n, members of the Court expressed grave concerns about deference to an agency’s interpretation of vague and ambiguous regulations—especially when the agency itself was responsible for the ambiguities.
  • Finally, Justice Thomas wrote a compelling concurring opinion in Michigan v. EPA, in which he stressed that the Court’s continued allegiance to “Chevron deference”—under which courts defer to agencies’ interpretations of the statutes they are charged to administer—raises “serious” constitutional questions under the “separation of powers” doctrine.