DJofSD
03-10-2015, 11:51 AM
http://www.bloombergview.com/articles/2015-03-09/supreme-court-s-big-mistake-in-a-small-case
The U.S. Court of Appeals for the D.C. Circuit is often called the second highest court in the land, because its judges decide most of the important cases involving the vast reach of the modern administrative state. Every so often, however, the U.S. Supreme Court likes to remind the D.C. Circuit who’s the boss by reversing one of its administrative law principles. That happened Monday, in a 9-0 decision in which the court repudiated a perfectly serviceable doctrine the D.C. Circuit invented and has used sensibly since 1997. The decision won’t make headlines -- but it’s wrong anyway, and it gives far too much power to administrative agencies.
The decision involves what sounds like a deceptively simple question: When an agency changes its interpretation of a regulation that it has issued itself, does it need to give the public notice and ask for public comment? The Supreme Court said the answer was no. It looked to the Administrative Procedure Act, which functions as the unofficial constitution for the fourth branch of government known as the administrative state. The APA says that ordinary rules must be subject to notice and comment, but that the same requirement doesn't apply to what it infelicitously calls “interpretative” rules.
The balance of the article at the link above.
The U.S. Court of Appeals for the D.C. Circuit is often called the second highest court in the land, because its judges decide most of the important cases involving the vast reach of the modern administrative state. Every so often, however, the U.S. Supreme Court likes to remind the D.C. Circuit who’s the boss by reversing one of its administrative law principles. That happened Monday, in a 9-0 decision in which the court repudiated a perfectly serviceable doctrine the D.C. Circuit invented and has used sensibly since 1997. The decision won’t make headlines -- but it’s wrong anyway, and it gives far too much power to administrative agencies.
The decision involves what sounds like a deceptively simple question: When an agency changes its interpretation of a regulation that it has issued itself, does it need to give the public notice and ask for public comment? The Supreme Court said the answer was no. It looked to the Administrative Procedure Act, which functions as the unofficial constitution for the fourth branch of government known as the administrative state. The APA says that ordinary rules must be subject to notice and comment, but that the same requirement doesn't apply to what it infelicitously calls “interpretative” rules.
The balance of the article at the link above.