Supreme Court Justice John Roberts elicited groans of disappointment from conservatives Wednesday when he sided with the court’s liberal justices again by voting against an attempt to weaken the power of America’s widely criticized federal regulators.
The case was Kisor v. Wilkie, and though it concerned the so-called Auer deference (more on this below), Roberts’ ruling suggests he would never vote to repeal Roe v. Wade (more on this later).
“When agencies make regulations — environmental rules, labor standards, health regulations — they’re routinely taken to court. It’s almost part of the process at this point: Either corporations complain that the rules are too strict, or public-interest groups complain that they’re too lax,” The Daily Beast explains in regard to Wednesday’s ruling.
“But courts don’t look at the rules from scratch. They defer to agencies’ interpretations of the laws they enforce, in what’s called Chevron deference, or to the regulations they have written, in what’s called Auer deference. Auer deference was at issue in today’s case, Kisor v. Wilkie.”
It’s a longstanding, controversial precedent that essentially allows federal regulators to regulate their own regulations, thus making federal regulators accountable to nobody.
In Kisor v. Wilkie, #SCOTUS declines to overrule prior precedent, upholds principle that courts should defer to agency’s reasonable interpretation of its own ambiguous regulation
— SCOTUSblog (@SCOTUSblog) June 26, 2019
Every conservative justice save for Roberts, who purports to be conservative though his rulings invariably belie this notion, voted in favor of eliminating the Auer deference.
“It should have been easy for the Court to say goodbye to Auer,” Justice Neil Gorsuch wrote in a dissenting opinion joined by fellow conservative Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. “A legion of academics, lower court judges and Members of this Court … has called on us to abandon Auer. Yet today a bare majority flinches, and Auer lives on.”
He added that the elimination of Auer would have put those who challenge the federal government’s regulations on equal footing with federal regulators, and further argued that the deference’s continuation will only exacerbate a “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.”
It “force[s] litigants and lower courts to jump through needless and perplexing new hoops and in the process den[ies] the people the independent judicial decisions they deserve.” And it was adopted “without ever pausing to consider whether a rule like that could be legally justified or even made sense.”
The court’s liberal justices disagreed. To them, regulating federal regulators would have amounted to “handcuff[ing] the administrative state,” as The Daily Beast put it.
“Agencies … have political accountability, because they are subject to the supervision of the President, who in turn answers to the public,” liberal Justice Elena Kagan wrote in the majority opinion.
“It is because of those features that Congress, when first enacting a statute, assigns rulemaking power to an agency and this authorizes it to fill out the statutory scheme. And so too, when issues demanding new policy come up within that scheme, Congress presumably wants the same agency, rather than any court, to take the laboring oar.”
But what happens if an agency oversteps its bounds and imposes rules that, besides being draconian, negatively affect the economy and thus the country at large?
In his own dissenting note, Kavanaugh pointed out that allowing the Auer deference to continue is equivalent to forcing an umpire at Wrigley Field to run his or her decision through the Cubs manager in-game.
Plus, allowing federal regulators this much authority “violates [regulatory] agencies’ statutory authority under the Administrative Procedure Act (APA), which sets clear steps agencies must follow before promulgating a new rule, not to mention the APA’s directives to courts to ‘determine the meaning’ of relevant ‘agency action’ and to ‘set aside agency action . . . found to be . . . not in accordance with law,'” according to Judicial Crisis Network chief counsel Carrie Severino.
— Judicial Network (@judicialnetwork) June 27, 2019
Besides being relevant to the federal government’s unrestricted power to regulate Americans out of business, Wednesday’s rule may also be relevant to the wider push by Republicans to repeal Roe v. Wade and relegate the issue of abortion back to the states.
On Wednesday Roberts helped preserve the doctrine of stare decisis, which according to The Washington Post “requires courts to adhere to precedents.” In doing so, he took a side against the court’s conservative justices and handed the pro-abortion movement a welcoming omen.
“This year, the court’s justices have offered widely different understandings of stare decisis. Last month, for example, Justice Clarence Thomas wrote that the doctrine is ‘not an inexorable command’ and depends on ‘the quality of the decision’s reasoning,'” The Daily Beast notes. “That would easily allow for overturning Roe v. Wade and other cases that Justice Thomas believes are of dubious ‘quality.‘”
But with Roberts having taken a stand in favor of stare decisis, it stands to reason that he’ll do so again, including when the alleged “right to abortion” comes up.
As insinuated by renowned conservative commentator Erick Erickson noted, that Roberts voted in favor of demonstrably bad precedent is NOT a good sign …
Funny to see this. Conservatives have been saying for years that Roberts would never be the 5th vote to overturn Roe. https://t.co/ObTd1tNkhv
— Erick Erickson (@EWErickson) June 26, 2019
**UPDATE: Hours after this post’s publication, Roberts was criticized once again for not being in line with conservative values when he helped deliver a Supreme Court blow to the Trump administration.
As BPR reported, Justice Roberts delivered the Court’s opinion after temporarily blocking the addition of a citizenship question to the 2020 census. He was immediately ripped apart on Twitter:
— Michelle Malkin (@michellemalkin) June 27, 2019
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