On June 26, 2019, the U.S. Supreme Court issued an opinion declining to overturn Auer v. Robbins, a precedent that damages the separation of powers by instructing the judiciary to adopt, as binding law, the executive’s interpretations of its own regulations. The decision was a setback for WLF, which filed a brief in the case calling for the end of Auer deference. While reinforcing sound limits on the exercise of Auer deference (nearly all of which were grounded in earlier precedents), the majority insisted that Auer “retains an important role in construing agency regulations.” WLF’s brief had offered concrete examples of agencies’ efforts aggressively to expand, or abruptly to alter, the import of their regulations—without ever employing the prescribed process for formally amending regulations.
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