A case called Digital Realty Trust v. Somers gives the Supreme Court a chance to rein in a particularly inappropriate use of the Chevron doctrine, under which courts give deference to agencies’ interpretations of law [Ilya Shapiro, Harvard Law Review blog]
The last few years have of course seen renewed attention — academic, judicial, and journalistic — to the question of whether courts have become altogether too deferential to executive agencies. While Chevron deference (and its cousins, Auer and Seminole Rock deference) was originally justified as a necessary tool for preventing courts from unduly meddling in administrative decisionmaking, hasn’t the pendulum swung too far?…
As the Supreme Court explained in Long Island Care at Home, Ltd. v. Coke in 2007, the APA [Administrative Procedure Act] requires an agency conducting notice-and-comment rulemaking to provide the public with “fair notice” of what will be, or might be, included in its final regulation. Yet there was nothing in the [Securities and Exchange Commission’s Notice of Proposed Rulemaking] that would have given any notice to the public that it was going to change whom Dodd-Frank would protect from retaliation.
Just last year, the Court reaffirmed in Encino Motorcars, LLC v. Navarro that procedurally deficient rules that violate the APA do not receive Chevron deference because they lack the “force of law.” The SEC regulation here was procedurally deficient because of the final rule’s fair-notice problem, so it shouldn’t qualify for Chevron.
More on the Somers case and Cato’s amicus brief: Trevor Burrus and Frank Garrison.