Posts Tagged ‘administrative law’

A federal school bathroom policy? Not so fast

The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]

[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

More on Auer deference here, etc.

Write an ambiguous rule — then pounce

Government agencies can get an unfair edge in disputes with the regulated public if they can write ambiguity into their rules, develop interpretations that open up further ambiguities to suit their needs, and then when a dispute arises gain deference from courts on these doubtful interpretations-piled-upon-interpretations. In Foster v. Vilsack, the issue was whether a “prairie pothole” depression on a South Dakota farm should be deemed a federally protected wetland, denying the Fosters productive use of the land; the U.S. Department of Agriculture adopted what seemed a strained interpretation enabling it to so designate the land, and the Eighth Circuit deferred to it.

The decision actually afforded the agency “second-level” Auer deference, deferring to an interpretation of a vaguely written agency circular that interprets a vague regulation that in turn interprets a vague statute–all to get to a definition of “local area” that is nothing close to a natural and reasonable interpretation of that term.

Cato has filed an amicus brief on behalf of the farm family’s request for certiorari, urging the Supreme Court to revisit the Auer doctrine in administrative law at least to prevent its irrational extension:

Second-level Auer deference also undermines the rule of lenity — a traditional rule of interpretation stating that ambiguity in criminal statutes must be resolved in favor of the defendant — even more than first-level Auer deference already does. It effectively allows agencies to create new crimes (again without notice to the public) by doing as little as reinterpreting a footnote in a memo. Cato urges the Supreme Court take the case so that it may rein in the expansion of Auer deference and make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.

[Trevor Burrus and David McDonald; more on Auer deference]

FIRE backs suit over Dear Colleague letter

With help from FIRE (the Foundation for Individual Rights in Education), a former University of Virginia law student has sued the U.S. Department of Education Office for Civil Rights arguing that it violated the law in its notorious 2011 Dear Colleague letter requiring many campuses to roll back the procedural rights of students accused of sexual assault. The John Doe complainant argues that the department should at a minimum have put the policy shifts proclaimed in the letter through the notice-and-comment process prescribed for rulemaking, rather than in effect proclaiming them by decree through subregulatory guidance. The letter affected the student’s own case, he argues, because of comments from the retired judge deciding the case that she viewed the evidence as falling short of a clear and convincing threshold, the standard formerly in use, and ruled against him only because the university had complied with federal guidance by dropping its standard to preponderance of the evidence. [Susan Svrluga, Washington Post; Hans Bader, CEI]

“Administrative Law Judges Are Unconstitutional”

Administrative law judges are executive-branch as distinct from judicial officers, yet the President has no power to remove them; at the Securities and Exchange Commission and many other federal agencies, they are themselves employed by the agency on whose enforcement cases they must render quasi-judicial rulings. In recent years federal judges have expressed unease about whether assigning ALJs this particular combination of adjudicatory powers and institutional affiliations is entirely consistent with the U.S. Constitution, and now a Cato Institute amicus brief, in the D.C. Circuit case of Timbervest LLC v. Securities and Exchange Commission, urges courts to take the next logical step and rule that it is not. [Ilya Shapiro and Thaya Brook Knight; earlier here, here, here here, etc.]

April 20 roundup

Scalia’s change of mind on agency deference

Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]

The biggest cases, without Scalia

This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)

“Time to Rein in Judicial Deference to Executive Agencies”

The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]

Justice Scalia’s jurisprudence

Scalia for the general reader: my new piece briefly explains his textualism, originalism, and rules jurisprudence [American Media Institute Newswire, syndicated] And in a new Cato Podcast, Caleb Brown interviews Tim Lynch and me about the Justice’s legacy in the areas of criminal law, regulation, and administrative law:

In his long battle against vagueness in defining crimes, Justice Antonin Scalia was a true hero of liberty and the rule of law. Harvey Silverglate discusses that here.

December 23 roundup