For any readers who don’t regard the title of this post as an oxymoron, I’d like to highlight Monday’s Supreme Court ruling in Perez v. Mortgage Bankers Association. In that case, the Court ruled unanimously that a federal administrative agency is not required to use the Administrative Procedure Act’s notice-and-comment procedures “when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted.” It thus rejected the so-called Paralyzed Veterans rule that the D.C. Circuit adopted in 1997.
More important than the issue that Perez decided are the issues that now seem open for consideration or reconsideration. I recommend this SCOTUSblog post by Brian Wolfman and Bradley Girard (and I draw from it.) One big issue is how to draw the line between substantive rules (which are ordinarily subject to notice-and-comment procedures) and interpretive rules (which, under Perez, aren’t). Further, both Justice Scalia and Justice Thomas, in their separate opinions (in Thomas’s case, a lengthy exploration of constitutional principles) dispute that courts should defer to an agency’s interpretations of its own regulations (so-called Auer deference). As Wolfman and Girard point out, there appear to be at least four justices ready to revisit Auer, and there might even be considerable interest in revisiting Chevron (judicial deference to an agency’s interpretation of the statute that it administers).
Eighty years after the New Deal and sixty years after the enactment of the APA, it’s remarkable how little careful consideration the Court seems to have given to what the basic principles of judicial review of agency action ought to be.