Small Businesses Want Supreme Court to Rein in Agency Power

Any American who followed the last two U.S. Supreme Court confirmation hearings likely heard a lot about the administrative law doctrine, Chevron deference. Although simple, Chevron has massive implications on small and independent businesses.

The doctrine directs judges to give federal regulators the benefit of the doubt when there is a question about what a statute requires. To varying degrees, Supreme Court Justices Neil Gorsuch and Brett Kavanaugh expressed skepticism over whether Chevron is rooted in the Constitution.

Therefore, it came as no surprise when the Supreme Court decided to revisit another long-standing, judicially-created administrative law doctrine known as Auerdeference.

Auer deference is named after the 1997 case, Auer v. Robbins, and is similar to Chevron in that it once again directs judges to give federal agencies the benefit of the doubt. The difference is that while Chevron directs judges to defer to an agency’s interpretation of an ambiguous statute when it promulgates a regulation, Auer tells judges to defer to an agency’s interpretation of its own ambiguous regulation.

Click here to read more of this Bloomberg Law article by Karen Harned.