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AG Schmidt to Supreme Court: Rein in federal agencies

Release Date: Feb 10, 2016

TOPEKA – (February 10, 2016) – Kansas Attorney General Derek Schmidt has asked the U.S. Supreme Court to decide a case that could broadly restrict the ability of federal regulatory agencies to both make rules and interpret them.

In a brief filed last week, Kansas and 15 other states ask the high court to review whether previous case law granting broad deference to federal agencies in interpreting their own regulations should be overruled.

“Our Constitution established a federal government with three branches, not four,” Schmidt said. “But in the modern administrative state, much of the real power in Washington has shifted to federal administrative agencies that are unelected and largely unaccountable. This case presents an ideal opportunity for the Supreme Court to reverse some of this anti-democratic seepage of regulatory power.”

The legal question presented to the Supreme Court is whether a federal court reviewing a federal agency’s interpretation of its own regulations should be required to give deference to the agency’s interpretation of its rules. The states ask the Supreme Court to overrule two prior precedents – one from 1945 and the other from 1997 – that require federal courts to defer to agencies’ interpretations of their own rules.

“In a democracy, the power to make the law rests with those chosen by the people,” the states wrote in their brief, quoting a Supreme Court decision from last year. “There is growing agreement that deferring to an agency’s interpretations of its own regulations, as required by [current Supreme Court precedent], is inconsistent with this fundamental principle.”

Schmidt said he hoped the Supreme Court would agree to hear the case because it would present the Court a chance to address that underlying legal issue outside the context of any particular high-profile political controversy. The effort is consistent with other state challenges to federal agency rules and regulations that exceed the authority granted by Congress to federal agencies. Currently, Kansas and coalitions of other states have three high-profile federal agency actions – related to power plant regulations, water regulations, and immigration regulations -- blocked by federal court orders while the courts sort out their legality.

“The federal bureaucracy, under presidents of both political parties, has become a sort of perpetual motion machine, ever-expanding and powered by itself,” Schmidt said. “That lack of executive-branch and administrative accountability is not the system of government our Constitution intended. We’re hopeful the Supreme Court will use this opportunity to begin reining in bureaucratic power to both write the rules and then interpret them, which effectively cuts the states and the public out of the rulemaking process.”

The case is United Student Aid Funds, Inc., v. Bryana Bible, No. 15-861, from the Seventh Circuit Court of Appeals. A copy of the states’ brief is available at http://1.usa.gov/1Q6blFq .

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