In the 1996 case Auer v. Robbins, the Supreme Court ruled that where there is any ambiguity or disagreement over what a federal regulation means, courts should defer to the interpretation favored by the agency that issued the regulation. The practical consequence of this decision has been that government agencies have had the power not just to create and enforce their own rules but also to definitively interpret them. Given the mind-boggling number of federal regulations that exist—and the exceptional breadth of behavior that they govern—the importance of this “Auer deference” can’t be overstated.
While handing
the powers of all three branches of government to the bureaucracy is
problematic in and of itself, a recent decision by the U.S. Court of Appeals
for the Ninth Circuit further extended the deference courts show to agency
rulemakers by declaring that an agency’s interpretation of its own rule is
authoritative even if the agency has altered its interpretation dramatically since the
regulation came into effect. Under that logic, an agency could spend decades saying that its
regulation governing footwear only applied
to shoes—and then, without warning or consultation, unilaterally decide to
extend the rule to sandals and slippers (despite explicitly saying for years
that they were not covered by the regulation).
Such a power to
rewrite regulations through after-the-fact “reinterpretation” is incredibly
tempting, freeing agencies to change the rules of the game without further
legislation or congressional oversight, or even the formalized rulemaking
process required by the Administrative Procedure Act. .........To Read More.......
My Take - Please read the comments. There is a great discussion on how SCOTUS awarded itself powers never outlined in the Constitution or intended by the founding fathers.
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