Posted on March 10, 2015 by Seth Jaffe
The Supreme Court on Tuesday ruled that, when an agency revises its interpretive rules, it need not go through notice-and-comment rulemaking. Although the decision, in Perez v. Mortgage Bankers Association, required the court to reverse a long-held line of D.C. Circuit cases, the decision was not difficult; it was, in fact, unanimous. In short, the Administrative Procedures Act:
states that unless “notice or hearing is required by statute,” the Act’s notice-and-comment requirement “does not apply … to interpretative rules.”
It carves out no exception for revisions to interpretive rules. Game over.
The truly interesting part of the case was in the concurring opinions. Both Justices Scalia and Thomas, effectively joined by Justice Alito, argued that Supreme Court decisions giving deference to agencies’ interpretation of their own rules have no constitutional foundation and should be overruled.
This is not the first time that they have made these arguments. As I noted previously, in Decker v. Northwest Environmental Defense Center, Chief Justice Roberts also suggested that it might be time to revisit what is generally known as Auer deference. It is notable in Perez that the Chief Justice joined the Court’s opinion. Absent a change in the make-up of the Court, I don’t see it revisiting Auer any time soon.
Otherwise, the most notable part of the case is a statement from Justice Thomas that, to me, already wins the metaphor of the year prize. Justice Thomas’s argument against Auer deference, while couched in constitutional terms, is really a screed (parts of which I sympathize with) against the growth of rulemaking and the modern administrative state. He laments the use of interpretive rules and the decline of formal notice-and-comment rulemaking, and the protections that are required:
Today, however, formal rulemaking is the Yeti of administrative law. There are isolated sightings of it in the ratemaking context, but elsewhere it proves elusive.
True dat. It just doesn’t justify abandoningAuer deference in my book.