How American Judges Destroyed Our Liberties And Bound Us Over to Regulatory Tyranny
Bill Quick

SCOTUS Deferred to Executive Agencies. What Happened Next Will Infuriate You! | Cato @ Liberty

In the 1996 case Auer v. Robbins, the Supreme Court ruled that where there is any ambiguity or disagreement over what a federal regulation means, courts should defer to the interpretation favored by the agency that issued the regulation. The practical consequence of this decision has been that government agencies have had the power not just to create and enforce their own rules but also to definitively interpret them. Given the mind-boggling number of federal regulations that exist—and the exceptional breadth of behavior that they govern—the importance of this “Auer deference” can’t be overstated.

While handing the powers of all three branches of government to the bureaucracy is problematic in and of itself, a recent decision by the U.S. Court of Appeals for the Ninth Circuit further extended the deference courts show to agency rulemakers by declaring that an agency’s interpretation of its own rule is authoritative even if the agency has altered its interpretation dramatically since the regulation came into effect. Under that logic, an agency could spend decades saying that its regulation governing footwear only applied to shoes—and then, without warning or consultation, unilaterally decide to extend the rule to sandals and slippers (despite explicitly saying for years that they were not covered by the regulation).

Such a power to rewrite regulations through after-the-fact “reinterpretation” is incredibly tempting, freeing agencies to change the rules of the game without further legislation or congressional oversight, or even the formalized rulemaking process required by the Administrative Procedure Act.

You have our judiciary to thank for the sacrifice of our liberties on the infinite altars of the regulatory state.

Bill Quick

About Bill Quick

I am a small-l libertarian. My primary concern is to increase individual liberty as much as possible in the face of statist efforts to restrict it from both the right and the left. If I had to sum up my beliefs as concisely as possible, I would say, "Stay out of my wallet and my bedroom," "your liberty stops at my nose," and "don't tread on me." I will believe that things are taking a turn for the better in America when married gays are able to, and do, maintain large arsenals of automatic weapons, and tax collectors are, and do, not.

Comments

How American Judges Destroyed Our Liberties And Bound Us Over to Regulatory Tyranny — 1 Comment

  1. That sort of “reinterpretation” by Gubment agencies in their infinite “wisdom”, BTW, is far, FAR from being any sort of new development, of course – both the IRS and the BATFE, as two prime examples, have for decades taken broad-span liberties with how – and when – their various unts and individual agents interpret and apply the allegedly-clear-cut but, in reality, often-rather-vaguely-written rules and regulations under which they supposedly operate, and by which they are allegedly “governed”.

    The Infernal Revenooers, for instance, as many have found to their regret, have long operated on a daily basis that any “interpretation” whatsoever, at any stage of their internal operations that serves to increase the amount of the “take” from the taxpayers is not only A Good Thing but a virtual mandate. It therefore is incumbent upon them to be as “flexible” (i.e., changeable in their decisions as to what the “regs” actually mean in any particular taxpayer’s case, sometimes from day to day – or even hour to hour) as is needed to produce that increase.

    Likewise, The BAT-boys and -girls have an extensive, grim history of shiftiness when it comes to such fine points of their “standard rules and procedures” as exactly who, and under what circumstances, is determined to be “engaged in the business of” dealing in firearms, whether buying, selling or making – and, not exactly incidental to that, the “interpretation” of exactly what does – or does not – constitute a “firearm”. Often enough, for instance, even supposedly clear-cut statements issued by the “higher-ups” tend to be ignored or overridden by other units or agents in their pursuit of “violations” that amount to a total reversal of the prior statements that were made – the assault (there is no other way to properly describe it) on a company engaged in the business of producing and selling so-called “80%-lower receivers” is case in point.

    “Reinterpretation” when it suits their own purposes, for both agencies, is a routine matter – part of their standard operating procedures. They’re not the only ones, either, just likely the most blatant about it.