Outside Publication

Strategies to Bring Down a Giant: Auer Deference Vulnerable After Reprieve in Kisor v. Wilkie, Villanova Law Review, Vol. 65 Issue 3

October 07, 2010

The New Deal’s activist policies, which valued governmental efficiency, created the modern administrative state that has only grown and expanded over the last eight decades. The public’s expectations of agencies also increased in the 1960s and 1970s, due to increased liberal activism, which consolidated power to federal regulators. Agencies now have vast and overlapping functions in rulemaking, enforcement, and adjudication. In promulgating rules, agencies must act in accordance with congressional authorization and obtain guidance from the rulemaking procedures of the Administrative Procedure Act (APA). Agencies, unlike the Legislature, have subject-matter expertise that has been widely credited with increasing governmental efficiency. Additionally, the public often demands changes to regulated areas, such as consumer product safety, workplace safety, or automobile safety, and agencies are often able to promulgate rules more quickly than Congress by employing agency resources. While agency rules may protect and promote the interests of the general public, agencies, like Congress, are also subject to the rent-seeking and lobbying efforts of special interest groups.

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