Posts Tagged ‘Supreme Court’

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]

Supreme Court roundup

August 31 roundup

  • “If you want lifetime employment, go into compliance.” [Daniel Yergin, WSJ via Arnold Kling]
  • A Supreme Court with new Clinton nominees likely to spell bad news for business in arbitration, class actions, employment/labor, environmental issues [Daniel Fisher]
  • Guilty plea for man who staged 50+ fake car accidents as part of eastern Connecticut fraud ring [U.S. Department of Justice, Norwich Bulletin, Insurance Journal]
  • An ambitious social welfare program in India failed in part because of its transparency and anti-corruption rules []
  • “The Supreme Court Should Reassert the Importance of Procedural Gatekeeper Rules to Deter Antitrust Litigation Excesses” [Alden Abbott]
  • A short guide to what lawyers mean by “equity,” for law students and others [Sam Bray]

Justice Ruth Bader Ginsburg goes off on the presidential race

Sorry, Justice Ginsburg, but those comments about a candidate whose legal interests might well come before the Court this year were waaaay over the line [Dan Drezner; Bloomberg View editorial; Orin Kerr (“cringe-inducing”)] “In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments.” [Jonathan Adler, more (the Justice deserves commendation for ensuring that the Court will consist of only 7 non-recused Justices, the better to speak with a clear majority voice, in case Donald Trump figures in a disputed election)] Yet more: Bob Fredericks, New York Post (thanks for quote). Some contrary views: Profs. Erwin Chemerinsky and Paul Butler, quoted in the ABA Journal; but note this from Prof. Jeff Pojanowski re: Prof. Chemerinsky’s views in 2014 (link fixed now).

More, Steve Lubet: “Political neutrality is not a facade, it’s an aspiration. When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg’s recent remarks.”

Update: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” [Washington Post]

Supreme Court roundup

  • “Cato Batted .500 at the Supreme Court, Still Besting the Government” [Ilya Shapiro] “Obama Has Lost In The Supreme Court More Than Any Modern President” [same, The Federalist]
  • Scalia’s absence left a void this year, but (Friedrichs aside) not mostly on case outcomes [Shapiro, Forbes] Scalia’s legacy on criminal defense [Kevin Ring, Cato Daily Podcast]
  • “Supreme Court Session Promised Much, Delivered Little To Business” [Daniel Fisher]
  • Relevant to Sotomayor and Kagan dissents in the exclusionary rule case, Utah v. Strieff: outstanding warrants are neither infrequent not randomly distributed [Alex Tabarrok, Orin Kerr, Tim Lynch/Cato, Scott Greenfield]
  • Can Congress pass a statute whose effect is to dictate a result in one pending case? Should it matter whether the plaintiffs are sympathetic terror victims? [Michael Greve, Jonathan Adler, Daniel Fisher first and second on Bank Markavi v. Peterson]
  • Government contracting: high court corrects First Circuit’s implausibly pro-plaintiff reading of False Claims Act [Richard Samp, Washington Legal Foundation on Universal Health Services, Inc. v. United States ex rel. Escobar]

Supreme Court roundup

  • High court should review Washington coastal exaction as a taking without just compensation [Ilya Shapiro and Jayme Weber, Cato, on Common Sense Alliance v. San Juan County]
  • Redistricting: unanimous Court declines to strike down population variance that may have assisted Arizona plan in VRA compliance [ABA Journal]
  • “Supreme Court Should Protect Workers Against Government-Union Collusion” [Ilya Shapiro and Jayme Weber, Cato on D’Agostino v. Baker, challenge to Massachusetts law designating day-care providers as state employees for purposes of unionization]
  • Followup on CRST Van Expedited v. EEOC: “An open love letter to Justice Clarence Thomas” [Marcia McShane, earlier]
  • “Supreme Court declines to reconsider deference to agency interpretations of agency regulations” [Jonathan Adler on cert denial in United Student Aid Funds, earlier here and here]
  • “Supreme Court Kills Minimum Wage Lawsuit Against Seattle” [Connor Wolf/Daily Caller, earlier]

Will right to work laws survive in a post-Scalia Court?

“Organized labor is laying the groundwork for an aggressive legal challenge to right-to-work laws, one that essentially would invalidate most state versions of the law.” When unions sought to overturn Indiana’s newly enacted right to work law, the Seventh Circuit upheld it but split 5-5 over rehearing of the case, a surprisingly close outcome. [Sean Higgins, Washington Examiner]

CRST Van Expedited v. EEOC

Another unanimous loss for Obama, another trip to the dunking booth for the Equal Employment Opportunity Commission: my new Cato post on last week’s Supreme Court decision on the proper standard for awarding attorneys’ fees to prevailing defendants in Title VII employment discrimination cases. Justice Thomas has it right in his concurrence: the ruling at hand is all well and good, but the Court needs to go further and rethink precedents that bend over backward to give prevailing employment plaintiffs a set of fee entitlements that it does not allow to prevailing defendants (& welcome SCOTUSBlog readers).