Justice Scalia and the Ninth Circuit, cats and dogs lying down together? The conservative justice was the only dissenter the other day in a 7-1 Supreme Court decision overturning the Ninth Circuit in the consolidated cases of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In doing so, the Court upheld (as the Ninth Circuit had not) the entitlement of the Environmental Protection Agency, and by implication other federal agencies, to deference in interpreting the meaning of its own regulations — so-called Auer deference, as distinguished from Chevron deference in the interpretation of Congressionally enacted statutes. Roger Pilon at Cato sorts it out and concludes that there is nothing paradoxical about the line-up: Scalia is distinctively vigilant against the dangers of excessive delegation of legislative power to executive-branch regulators, and deference tends to intensify the effects of such delegation. (Update: omitted link included now)
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