In veteran’s disability case, Supreme Court considers junking longtime deference to federal agencies

The Supreme Court debated Wednesday whether to overturn an important decision written by Justice Antonin Scalia for a unanimous court 22 years ago.

There was a twist.

At the oral argument, it was the late justice’s most devoted conservative acolytes who were anxious to junk Auer v. Robbins, which says judges generally should defer to a federal agency’s interpretation of its regulations.

It was the liberal justices who were vociferous in their unwillingness to let Auer go without a fight, saying it was an essential component of judicial humility and deference to expertise.

“I want to parody it, but, I mean, this sounds like the greatest judicial power grab since Marbury versus Madison,” said Justice Stephen G. Breyer, referring to the 1803 decision that established the principle of judicial review of federal laws.

He added, to laughter: “Which I would say was correctly decided.”

What has changed since Scalia’s 1997 decision is a growing concern in conservative legal circles that what is called “Auer deference” and other doctrines like it give too much power to government agencies, who use it to the detriment of business, regulated industries and ordinary people.