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In 2 Separate Opinions, SCOTUS Talks Regulatory Authority

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By Mark Wilson, Esq. on March 10, 2015 9:36 AM

Following one of the two most anticipated oral arguments of the year last week, the U.S. Supreme Court issued two opinions Monday that don't contain the sexiness of, say, the Affordable Care Act or same-sex marriage, but do make a lot of difference for those interested in executive regulatory power (yes, both of you!).

Both of the opinions in Perez v. Mortgage Bankers Association and Department of Transportation v. Association of American Railroads were unanimous, but they garnered some explanatory concurrences -- and concurrences complaining that the Court didn't go far enough.

Perez v. Mortgage Bankers Association

Mortgage brokers were exempt from overtime requirements until 2010, when the Department of Labor changed its mind about that. The MBA said that this reinterpretation amounted to promulgating a new rule, which requires a notice and comment period first. MBA said that Labor wasn't protected by an exemption for "interpretative rules" because, under the Paralyzed Veterans doctrine (a creation of D.C. Circuit case law), a significant revision of an interpretation requires that notice and comment period.

Justice Sotomayor upended the Paralyzed Veterans doctrine like Mr. T upended that table in the opening credits of "The A-Team." In a decision that seems to make a lot of sense, Sotomayor wrote, "Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule." One might complain that this could allow agencies to perform an end-run around the Administrative Procedures Act, but hey, that's Congress' business, not the Supreme Court's.

Justices Scalia, Alito, and Thomas each separately concurred, but all made the same point. They would like the Court to go even further and upend another table: the Bowles v. Seminole Rock deference that essentially binds federal courts to an agency's interpretation of its own regulations. Elaborating in his own concurrence, Thomas said Bowles was effectively a transfer of judicial review authority to the executive branch.

Department of Transportation v. Association of American Railroads

This other case from the D.C. Circuit dealt with Amtrak, which was established in 1970 as a private corporation for operating interstate passenger rail. Well, sort of. Amtrak has powers that private companies don't, like holding joint authority with the Federal Railroad Commission to establish performance and scheduling metrics that require freight carriers to modify their schedules, sometimes to private freight's detriment. This, they claimed, was an impermissible delegation of government authority to a private company.

Justice Kennedy, though, wasn't convinced. Just because Congress called Amtrak a private corporation doesn't mean it's so. To the extent Amtrak has stock, "[t]he Secretary of Transportation holds all of Amtrak's preferred stock and most of its common stock." Its board members are appointed by the president and confirmed by the Senate. Congress sets the salary limits and the qualifications for each board member. Basically, if you add everything up, Amtrak is far from a private corporation. The Court remanded the case to the D.C. Circuit for more fighting over whether Amtrak has too much regulatory authority and/or violates separation of powers principles.

Justice Alito concurred to point out that Amtrak is a strange beast indeed, pointing out that Congress calls Amtrak a private entity, but invests it with government powers. "No wonder the D.C. Circuit ruled as it did," he said. For Alito, Amtrak's structure and operation present some constitutional problems -- even if Congress says it's not a department of the executive branch, all signs point to Amtrak having something consistent with regulatory authority.

Justice Thomas, again, concurred separately to promote a framework for "resolution of delegation challenges." In typical Thomas fashion, we're treated to a romp through history to support the notion that the non-delegation doctrine, as currently implemented, entails delegating too much authority to the executive branch.

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