The Nickel Report

Executive Branch agencies write vague rules.  Then they give them meaning through interpretation.  That meaning may change over time through re-interpretation.  Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next.  See, e.g.,  Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).  This is a problem for regulated entities that face penalties for failure to comply.  Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical commentary from conservative Justices.  In October 2016, the Supreme Court granted review  in a case from the Fourth Circuit -- GG v. Gloucester County School Board (cert. granted Oct. 28, 2016)—where the court gave “controlling weight” to a staff interpretation of a Department of Labor (“DOL”) regulation.  In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of agency deference.  Does this case presage more comprehensive review of the Court’s deference jurisprudence?  And what does it portend for the Trump Administration’s efforts to reverse Obama Administration regulatory priorities?