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Sean D. Reyes
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Utah Seeks Supreme Court Reversal of Improper Increase of Federal Agency Power and Rejection of the Auer/Seminole Rock Doctrine

State of Utah Files Amicus Curiae Brief Supported by Fifteen States in United Student Aid Fund Inc. v Bible: 

SALT LAKE CITY Feb. 10, 2016 – The State of Utah led out with an  amicus curiae brief to the United States Supreme Court seeking the reversal of a case using the Auer/Seminole Rock doctrine. The brief contends that the doctrine gives unconstitutional deference to federal agencies, violating separation of powers principles. Utah’s brief was joined by Texas, Wisconsin, Alabama, Arkansas, Arizona, Georgia,  Indiana, Kansas, Montana, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, and Wyoming. The full brief can be read below.

Under the direction of Utah Attorney General Sean Reyes, the brief was drafted and filed by Utah Federal Solicitor Parker Douglas.

“I think the number of states that have signed on to this brief speaks to the importance of this case,” said General Reyes.  “The case is the perfect vehicle for the Supreme Court to correct the unconstitutional deference about which several Justices have expressed concern.  Those Justices have previously stated that they were awaiting the proper case to reconsider the doctrine.  This is that case.”

“At issue in this case is the separation of powers between the federal government and States, as well as in the consistent and non-arbitrary application of federal regulations,” said Douglas. “Federal agencies should not be able to write ambiguous regulations and arbitrarily enforce them.”

The cases questioned by the brief, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., require courts to give deference to agency interpretations of ambiguous regulations. There is a growing recognition in the legal community that the level of deference in these cases raises grave separation of powers and administrative law concerns. By placing the powers to write and to interpret law in the same hands, these cases encourage vague regulations, ever shifting administrative interpretations, and arbitrary government.

In addition to separation of powers and administrative law concerns, the deference to administrative rules and interpretation in the Auer/Seminole Rock cases also subverts basic principles of federalism. Agency interpretations of ambiguous regulations preempt contrary state laws in a way that cannot be squared with the text or spirit of the Supremacy Clause.

In addition, this deprives States political process protections. Although the Constitution guarantees the States a role in the composition of the federal legislature in order to ensure that their interests are heard and understood, the States lack any such role in the composition of federal agencies.

Finally, by encouraging agencies to evade the notice-and-comment requirements of the Administrative Procedure Act, the Auer/Seminole Rock cases deprive States of the opportunity to participate in the rulemaking process intended by that statute.

The case is United Student Aid Funds, Inc., v. Bryana Bible, No. 15-861, from the Seventh Circuit Court of Appeals.  A copy of Utah and its sister states’ brief is available at .

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Utah amicus brief (combined PDF for printer)