Forcefully dissenting from the Supreme Court’s denial of certiorari this week in United Student Aid Funds v. Bible, Justice Clarence Thomas repeated his clarion call to overturn Auer/Seminole Rock deference. That doctrine requires reviewing courts to give an agency’s interpretation of its own regulatory rules controlling weight, so long as that interpretation is not “plainly erroneous.”
WLF filed an amicus brief in the case urging certiorari. WLF’s brief, joined by Professor Philip Hamburger of Columbia University Law School, argued that by requiring judges to reflexively defer to the legal interpretations of federal bureaucrats in administrative agencies, Auer asks jurists to abandon their Article III duty of independent judgment. Even worse, we contended, when the agency to which a court must defer under Auer is a party to the litigation, Auer undermines the rule of law by creating a systematic bias in favor of the federal government in violation of due process of law.
Justice Thomas echoed similar concerns in his dissent, criticizing what he viewed as a “metastasized” deference doctrine “on its last gasp”:
More broadly, by deferring to an agency’s litigating position under the guise of Seminole Rock, courts force regulated entities like petitioner here to ‘divine the agency’s interpretations in advance,’ lest they ‘be held liable when the agency announces its interpretations for the first time’ in litigation. Christopher, supra, at ___ (slip op., at 14). By enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ in later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.’ Talk America, Inc., supra, at 69 (Scalia, J., concurring).
Over the past few years, Justices Alito and Roberts, as well as the late Justice Scalia, leveled similar criticisms at Auer deference. Here’s hoping that Justice Thomas’s jeremiad does not fall on deaf ears when a ninth justice is ultimately confirmed to the high court.