Justice Scalia Calls on the Court to Define Deference Down
9:05 AM, Jun 10, 2011 • By ADAM J. WHITE
Change may well be afoot, however. The justices, while insulated in part from the political world, are no doubt aware of the immensely greater power that agencies are assuming under complex, expansive new regulatory schemes. The massive Dodd-Frank financial bill has sparked innumerable rulemakings (243, by one count); Obamacare's regulatory implementation will be even more complicated.
One of those regulatory quagmires, or another administrative action, might ultimately stretch Auer's rule of deference to the breaking point. When it does, we can look forward to a Supreme Court decision that will be fascinating – even if it's a telecom case.
Adam J. White is a lawyer in Washington, D.C.