Supreme Court Hears Oral Arguments on Reducing Power of Federal Regulators

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The Supreme Court earlier this week heard oral arguments in a 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 to overturn Auer as part of a proactive strategy developed to identify cases that put this issue squarely before the Supreme Court. 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. 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. A decision is expected by the end of June. For more information, contact Amy Chai at 800-368-5242 x8232.  

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