Document Type
Article
Publication Title
Yale Journal on Regulation Notice & Comment Blog
Abstract
Justice Scalia was the author of the unanimous decision in Auer v. Robbins (1997 ). Butsixteen years later in his partial dissent in Decker v. Northwest Environmental DefenseCenter (2013) , he described the doctrine as “a dangerous permission slip for the arrogation of power.” More pointedly, Justice Scalia proclaimed: “When the legislative and executive powers are united in the same person, . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” The thrust of Justice Scalia’s challenge to Auer deference—drawing heavily from the intellectual foundation laid by John Manning —is that if an agency is allowed to interpret its own regulations, it wields the power both to write the law (a legislative function) and to interpret and enforce the law (an executive function), thus raising serious separation-of-powers concerns. Auer deference remains a cornerstone of preemption in the generic drug context. Their fates are intertwined—and may pull conservatives (on the Supreme Court and in the business community) in opposite directions.
First Page
1
Volume
September 16, 2016
Publication Date
2016
Recommended Citation
Catherine M. Sharkey,
Auer Federalism: Preemption and Agency Deference, in Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations,
September 16, 2016
Yale Journal on Regulation Notice & Comment Blog
1
(2016).
Available at:
https://gretchen.law.nyu.edu/fac-articles/1045
