Supreme Court

Clarence Thomas Tells SCOTUS to Stop Deferring to Federal Agencies

The conservative justice takes aim at judicial deference.

|

Credit: C-SPAN

The U.S. Supreme Court receives hundreds of petitions each term from parties seeking to have their cases heard. Most of those petitions are rejected by the Court without any comment or explanation. But on certain rare occasions, one or more justices will speak out in dissent when the Court refuses to take a case. This week Justice Clarence Thomas did precisely that, lambasting his colleagues for choosing "to sit idly by" while bureaucrats at the Department of Education were allowed to set the scope of their own regulatory powers free from any meaningful judicial review by the federal courts.

Thomas' dissent came in a case called United Student Aid Funds, Inc. v. Bible. At issue was a 2015 ruling by the U.S. Court of Appeals for the 7th Circuit which granted broad deference to the Department of Education and its interpretation of federal law and accompanying federal agency rules covering the repayment of student loans. "Even if this were not the best interpretation of the statutes and accompanying regulations," the 7th Circuit declared, "it is at least a reasonable one, and we defer to that interpretation because it reflects the reasoned position of the Secretary of Education, who is tasked with administering the program."

As authority for this deferential stance, the 7th Circuit cited the Supreme Court's 1997 decision in the case of Auer v. Robbins. In Auer Justice Antonin Scalia led the Court in granting extremely broad deference to a federal agency's interpretation of its own rules. Scalia's Auer opinion relied in turn on the Supreme Court's 1945 precedent in a case known as Bowles v. Seminole Rock & Sand Co. "Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt," the Court held in Seminole Rock. "The ultimate criterion is the administrative interpretation, which becomes controlling weight unless it is plainly erroneous or inconsistent with the regulation."

This week's rejected case, United Student Aid Funds, Inc. v. Bible, asked the Supreme Court to overturn the 7th Circuit and to overrule Auer and Seminole Rock once and for all.

There is certainly good reason for the Supreme Court to revisit those two misguided precedents. As Columbia University law professor Philip Hamburger and the Washington Legal Foundation argue in an amicus brief they submitted in Bible, "the office enjoyed by judges under Article III of the Constitution is one of independent judgment, not deference, heightened respect, or other predisposed bias towards the most powerful of parties—the federal government. Such deference represents a dramatic departure from judicial independence, due process, and the rule of law."

I think that's exactly right. I would also add that the whole idea behind judicial deference is that unelected judges should be reluctant to overturn legislation passed by democratically accountable lawmakers on the grounds that such legislation (in theory) reflects the will of the majority. Yet under Seminole Rock/Auer deference, judges are not deferring to any sort of democratically accountable lawmakers; instead, they are deferring to federal bureaucrats. The traditional case for judicial deference is therefore particularly weak in this area of the law.

The Supreme Court, however, refused to get involved this week and declined to revisit Auer and Seminole Rock at this time. Those precedents remain what lawyers call "good law." That's what inspired Clarence Thomas to speak out in dissent. "This case is emblematic of the failings of Seminole Rock deference," Thomas wrote. "By enabling an agency to enact 'vague rules' and then to invoke Seminole Rock to 'do what it pleases' it later litigation, the agency (with the judicial branch as its co-conspirator) 'frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.'"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

50 responses to “Clarence Thomas Tells SCOTUS to Stop Deferring to Federal Agencies

  1. It’s good to see that at least one Justice is starting to push back on this issue. The Court’s deferential approach has led to pretty widespread abuse, particularly in the tax context, where the IRS has reservations against issuing retroactive regulations applicable to ongoing litigation.

    1. Last time I checked (two seconds ago), Article I, Section 9.3 of the Constitution hasn’t been repealed.

      But then again, I’m just a simple libertarian who doesn’t understand the necessities of our complex modern world.

      1. That applies to laws not IRS regulations.

        By the way, you now owe $13,000 on your 1969 tax bill. With fees and interest that comes to about $20 trillion. Please pay by next week.

        1. That applies to laws not IRS regulations.

          Oh, right, silly me. Next time the Democrats get control of both houses and the presidency, they should pass a law delegating all governmental authority to some agency. They could even make a new one called the “Federal Yahoo Thwarting Watch” or “FYTW.” That way we could enact all sorts of crazy laws! What could possibly go wrong?

          1. That’s pretty much already happened…

            1. Sadly, yes.

      2. It’s (1) regulations, not laws, and (2) civil disputes, not criminal, so according to SCROTUS, it’s all good.

        Additionally, 5 U.S.C. section 706 was never repealed, either, but we still have Chevron and Auer.

  2. Bad precendent should be overturned as promptly as possible to minimize the injustice inflicted.

    1. One man’s bad precedent is seven or eight justices’ good law.

  3. Nevada’s ESA Program Ruled Constitutional in Second Legal Challenge to Nevada School Choice

    Guess which side the ACLU picked?

    The ACLU of Nevada and several national groups opposed to school choice brought this case in late August, alleging that the ESA program undermines the public school system and amounts to impermissible state funding of religion. The lawsuit, Duncan v. State, would have asked the court to perform an intrusive investigation into parents’ and educators’ religious beliefs in an effort to obscure the program’s true purpose: educating Nevada children, by Nevada parents’ terms.

    So glad we have IJ!

    1. The ACLU of Nevada and several national groups opposed to school choice brought this case in late August, alleging that the ESA program undermines the public school system and amounts to impermissible state funding of religion.

      Remember when the ACLU stood for civil liberties?

      I don’t.

      1. They’re the reason why I’ve always hated the term “civil liberties.”

        1. Liberty seems perfectly capable of standing on its own.

      2. The ACLU supported Citizens United, but stopped talking about free speech entirely when it fell out of fashion among lefties.

        1. To be fair, they counter that support with a derpy suggestion for public financing for elections.

          1. True, but I still think their opposition to a government body determining what is and is not permissible political speech is praiseworthy, even if the rest of their plan is idiotic.

            When people go on about public financed elections, I usually just ask them whether they think their tax dollars should be paying for Donald Trump’s campaign. That tends to send them into a bunch of sputtering equivocation before changing the subject.

            1. And, of course, having the government control the funding used for political speech will never lead to the government controlling the content of political speech. Nope. Not gonna happen.

        2. I’m guessing they’re against the Washington Redskins’ trademark registration. ‘Cause “civil liberties” = government suppression of speech lefties find offensive.

  4. I love how progressives think direct democracy is the ideal system of government, but then also think unelected, unaccountable bureaucrats should have vast, unchecked powers to set policy.

    Makes sense if you don’t think about it, I guess.

    1. They support direct democracy to the extent that people agree with them and assume that they themselves will be among the TOP MEN.

    2. They believe that the bureaucrats are accountable to the executive and legislative branches, and that those branches are accountable to the people. Unless of course the legislative branch is run by Republicans, in which case gerrymandering and the Koch brothers have put the wrong sorts in charge. Or unless the executive is a Republican, in which case the electoral college is to blame.

    3. Makes sense if you don’t think about it, I guess.

      That’s progressivism in a nutshell.

  5. This week Justice Clarence Thomas did precisely that, lambasting his colleagues for choosing “to sit idly by” while bureaucrats at the Department of Education were allowed to set the scope of their own regulatory powers free from any meaningful judicial review by the federal courts.

    Certainly by rhetoric, Thomas remains a glimmer of light, dimly visible in the expanding gloom.

  6. “By enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ it later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.'”

    Thanks for noticing.

    1. I wonder if deferential review of regulations developed for expediency’s sake as much as for TOP MAN ideology. Federal judges have always complained about the size of their dockets, and rational basis review ensured they could clear their administrative cases more quickly.

      1. Federal judges have always complained about the size of their dockets,

        Not a federal judge, but my docket is huge

        In seriousness, though, I think you are correct. Federal judges resist expansion of the federal bench because they believe it would make their positions less prestigious, but lament the enormous backlog of cases. They lack the time, resources, and capacity to become sufficiently expert in the broad range of highly specialized subjects that come before them (especially in the DC Circuit), so deferring to the conclusions of the TOP MEN allows them to clear the docket more effectively.

  7. So under the current system, Congress could get around the Constitution and other laws by setting up a regulatory body to create regulations to, say, ban religion, the press, guns, integration, etc.?

    And no-one sees a problem with that?

    1. Approximately 1% of the population sees a problem.

      1. About 90% of the population has no idea what an “administrative agency” is or in which branch of government it resides.

      2. If by “population” you mean “Congress”, I think your percentage may be a little high.

    2. Congress could get around the Constitution and other laws by setting up a regulatory body to create regulations

      *Stares at PUPB for a really long time*

      Yes, that is exactly why every regulatory agency was created.

    3. Err…that is literally what has already been done so…

    4. The constitution is a series of loopholes around generally applicable law. Don’t you know anything?!

  8. “This case is emblematic of the failings of Seminole Rock deference,” Thomas wrote. “By enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ it later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.'”

    With all due respect Your Honor, Justice Thomas, you *do* realise those for-all-intents-and-purposes, independent-and-unaccountable, Alphabet Soup Agencies aren’t going to run themselves into nigh perpetuity with any serious restraints, now will they? Any casual observer can plainly see a Fourth Column cannot operate any other way. Leviathan can only grow, and grow it will.

    You don’t serious expect CONGRESS to do anything about this, do you?

    1. Groovus ?

      1. Yes, he hath returned.

  9. Scalia himself came to reject Auer toward the end of his life, as does Thomas and I believe Alito. Even the liberal majority is wary of Auer and has warned that the courts should not defer to agency “interpretations” that are really ad hoc litigation arguments. Lower courts still follow Auer but there has been increasing resistance. If Scalia were still alive I’d say that Auer was on its last legs. Even with him gone, I expect to see increasing resistance to this very bad idea of allowing agencies to adopt a rule and then “interpret” it as the agency sees fit in any given case.

    1. We don’t take kindly to your kind [optimists] in these parts…

      1. Heyyyyyyy! Them’s fightin’ words!

  10. I’ll believe it when Thomas calls for the court to stop deferring to the judgments of cops, prosecutors, school administrators, etc. too, instead of just the bureaucrats he happens to disagree with politically.

    1. Possible, maybe even probable, but the argument by itself holds water and is correct. One should be very careful to not blow off a correct argument simply because the source may hold conflicting views elsewhere.

      Regulatory agencies are, in my opinion, the #1 problem with Federal abuse of power.

  11. Has that stupid uncle Tom never read the Constitution? Necessary and proper…commerce…etc. It’s all right there in black and white!

    1. SUBSTANTIVE DUE PROCESS!!!!!

  12. Of course, the executive branch being empowered to write the functional equivalent of legislation doesn’t really raise any separation of powers issues.

    That’s the real problem – that agencies are allowed to write any rules of general applicability. What we call regulation is actually legislation, and should only come from Congress.

    Complaining about judicial deference to agencies is like complaining about phantom pain after the doctor cut off the wrong limb.

    1. See here, Counselor. Keep in mind, RC, not ONE Alphabet Soup Agency can do squat until funds are appropriated. Unfortunately, the habit of appropriating money years out, with automatic increases, confounds the problem.

      Also, Hello ‘Gain RC!

      Your wit, wisdom, and general patrician awesomeness has been missed.

      1. Well look who decided to show up.

  13. Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt

    That seems vaguely at odds with Scalia’s textualism. Unless he assumes that parliament can free administrations from the principle of textualism. … which seems at odds with principle.

  14. the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.'”

    Mr. Thomas, Americans voted for speciousness and they deserve to get it good and hard.

  15. Now, coming to the Showbox app, this is another superb app developed for movie lovers who want to get a better experience of watching movies and tv show on a bigger screen with more detailings.

  16. And one of those applications is Showbox apk app. It is one of the best online streaming application for watching Movies and TV Shows. In the starting, this application has been released for only a few of the mobiles and allows users to watch shows online.

Please to post comments

Comments are closed.