State of Utah seeks Supreme Court reversal of improper increase of federal agency power

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SALT LAKE CITY — The state of Utah led out with an amicus curiae brief to the United States Supreme Court seeking the reversal of a case using the “Auer/Seminole Rock” doctrine. Amicus curiae briefs — literally, “friend of the court” briefs — are filed by someone who is not a party to a particular case but who offers information that bears on the case even though they haven’t been solicited by any of the involved parties to assist the court. The brief in question contends that the Auer/Seminole Rock doctrine gives unconstitutional deference to federal agencies, violating separation of powers principles.

Utah’s brief was joined by Texas, Wisconsin, Alabama, Arkansas, Arizona, Georgia, Indiana, Kansas, Montana, Nevada, Ohio, Oklahoma, South Carolina, West Virginia and Wyoming. Under the direction of Utah Attorney General Sean Reyes, the brief was drafted and filed by Utah Federal Solicitor Parker Douglas in the 8th U.S. Circuit Court of Appeals case of United Student Aid Funds, Inc., v. Bryana Bible, No. 15-861.

“I think the number of states that have signed on to this brief speaks to the importance of this case,” Reyes said in a press release. “The case is the perfect vehicle for the Supreme Court to correct the unconstitutional deference about which several Justices have expressed concern. Those Justices have previously stated that they were awaiting the proper case to reconsider the doctrine. This is that case.”

Douglas said that the issue was not only the separation of powers between the federal government and states but also the consistent and non-arbitrary application of federal regulations.

Federal agencies should not be able to write ambiguous regulations and arbitrarily enforce them,” Douglas said.

The cases questioned by the brief — Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. — require courts to give deference to agency interpretations of ambiguous regulations. There is a growing recognition in the legal community that the level of deference in these cases raises grave separation of powers and administrative law concerns. By placing the powers to write and to interpret law in the same hands, these cases encourage vague regulations, ever shifting administrative interpretations, and arbitrary government.

In addition to separation of powers and administrative law concerns, the deference to administrative rules and interpretation in the Auer/Seminole Rock cases also subverts basic principles of federalism. Agency interpretations of ambiguous regulations preempt contrary state laws in a way that cannot be squared with the text or spirit of the Supremacy Clause.

In addition, this deprives states of political process protections. Although the Constitution guarantees the states a role in the composition of the federal legislature in order to ensure that their interests are heard and understood, the states lack any such role in the composition of federal agencies.

Finally, by encouraging agencies to evade the notice-and-comment requirements of the Administrative Procedure Act, the Auer/Seminole Rock cases deprive states of the opportunity to participate in the rule making process intended by that statute.

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