Buckeye Asks Supreme Court to Strike Blow to Administrative State

Sep 08, 2017

Amicus Brief filed in Garco Construction, Inc. v. Secretary of the Army

Columbus, OH – Today, The Buckeye Institute, along with the National Federation of Independent Businesses, CATO Institute, and other nonprofit organizations, filed an amicus brief with the Supreme Court of the United States asking it to take up the case of Garco Construction, Inc. v. Secretary of the Army that could overturn Auer deference.

“Currently, government agencies are in a position to make the law, execute the law, and, with Auer deference, interpret the law. The power given to regulatory agencies by Auer is reminiscent of Mel Brooks’ portrayal of King Louis XVI when he quips, ‘It’s good to be the king,’” said Daniel J. Dew, legal fellow at The Buckeye Institute. “In taking up Garco Construction v. Army the Supreme Court has the opportunity to overturn Auer deference and bring some clarity to government regulations, by reasserting the judiciary’s duty to say what the law is.”

Auer deference has put into place the capricious practice of letting a government agency implement a vaguely worded regulation, and then allows the agency to define the regulation. Auer further complicates matters by allowing the government agency to change its interpretation whenever it wants.

“Law abiding citizens are accountable for obeying thousands of laws passed by Congress and hundreds of thousands of regulations imposed by unelected, unaccountable government bureaucrats in regulatory agencies,” Dew continued. “Auer deference further complicates this Byzantine maze by requiring courts to defer to government agencies on interpreting vague regulations. As our brief states, ‘The rise of the administrative state may have tested the limits of the Constitution’s separation of powers, but it does not change the judiciary’s duty to ‘say what the law is.’”


UPDATE: March 19, 2018, Cert was denied by the Supreme Court of the United States. See the statement by Buckeye president and CEO Robert Alt for reaction.