NAHB Files Amicus Brief in Supreme Court Case Challenging Power of Federal Regulators

Contact: Ellen Wilson
(202) 266-8694

NAHB has weighed in on a Supreme Court case that has widespread implications for how courts handle challenges to all agency regulations.

The case, Kisor v. Wilkie, addresses the issue of whether courts should defer to an agency’s interpretation of its own regulations, known also as Auer deference.

NAHB supported the petitioner with an amicus brief as part of a proactive strategy developed to identify cases that put this issue squarely before the Supreme Court.

The NAHB-led coalition focused its amicus brief on the real-world consequences that can result when courts defer to agencies on their interpretations of their own regulations.

Auer deference has harmed NAHB’s interest in a number of cases, including a Clean Water Act case where the court relied on Auer to affirm the finding of a violation against property owners who had constructed a ditch to build a residential subdivision.

NAHB has long been concerned with this type of judicial deference because it can create incentives for agencies to avoid formal rulemaking processes, or create vague regulations that they can later interpret however they see fit. Either tactic prevents home builders and other industries from participating in the development of rules that govern their activities.

Along these lines, the NAHB brief stated: “With little or no notice, Auer allows agencies to drastically transform the regulatory foundation on which individuals and businesses have built their lives and livelihoods, and to do so with impunity.”

The NAHB Legal Action Committee and legal staff have developed a number of strategies to ensure that NAHB is well-positioned to influence litigation on the issues that impact NAHB members, including cross-cutting regulatory issues that influence how courts review all federal regulatory actions.

The Supreme Court will hear oral arguments on this case in March, and a decision is expected by the end of June 2019.

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