\
  The most prestigious law school admissions discussion board in the world.
BackRefresh Options Favorite

Thomas and Gorsuch doing God's work in fight against executive overreach

Cite as: 583 U. S. ____ (2018) 1 THOMAS, J., dissenting SU...
Costumed headpube
  03/19/18
Oh, this fucker: https://twitter.com/mjs_DC/status/975733238...
Costumed headpube
  03/19/18
i hate that guy with a burning passion
Flushed Flatulent Scourge Upon The Earth
  03/19/18
Who is that non-entity? Who cares?
floppy bistre church crotch
  03/19/18
...
Costumed headpube
  03/19/18
...
Mint Marvelous Regret
  03/19/18


Poast new message in this thread



Reply Favorite

Date: March 19th, 2018 11:24 AM
Author: Costumed headpube

Cite as: 583 U. S. ____ (2018) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

GARCO CONSTRUCTION, INC. v. ROBERT M. SPEER,

ACTING SECRETARY OF THE ARMY

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

No. 17–225. Decided March 19, 2018

The petition for a writ of certiorari is denied.

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

dissenting from the denial of certiorari.

Petitioner Garco Construction, Inc. (Garco), had a contract

with the Army Corps of Engineers to build housing

units on Malmstrom Air Force Base. As part of its contract,

Garco agreed to comply with all base access policies.

After construction began, the base denied access to certain

employees of Garco’s subcontractor. Although the text of

the base’s access policy required only a “wants and warrants”

check, App. to Pet. for Cert. 105a, the base clarified

that the policy also required background checks and excluded

many individuals with criminal histories—even if

those individuals did not have any wants or warrants.

Garco’s request for an equitable adjustment of the contract

was denied, and the Armed Services Board of Contract

Appeals denied Garco’s appeal. The Court of Appeals for

the Federal Circuit affirmed. Despite acknowledging

“some merit” to Garco’s argument that “‘wants and warrants’”

means only wants and warrants, the Federal Circuit

deferred to the base’s interpretation of its access

policy under Auer v. Robbins, 519 U. S. 452 (1997). 856

F. 3d 938, 943 (2017).

Garco filed a petition for certiorari, asking whether this

Court’s decisions in Auer, supra, and Bowles v. Seminole

Rock & Sand Co., 325 U. S. 410 (1945), should be overruled.

I would have granted certiorari to address that

2 GARCO CONSTRUCTION, INC. v. SPEER

THOMAS, J., dissenting

question.

Seminole Rock and Auer require courts to give “controlling

weight” to an agency’s interpretation of its own regulations.

Seminole Rock, supra, at 414; accord, Auer, supra,

at 461. To qualify, an agency’s interpretation need not be

“the best” reading of the regulation. Decker v. Northwest

Environmental Defense Center, 568 U. S. 597, 613 (2013).

It need only be a reading that is not “plainly erroneous or

inconsistent with the regulation.” Ibid. (internal quotation

marks omitted). Although Seminole Rock deference

was initially applied exclusively “in the price control context

and only to official agency interpretations,” Knudsen

& Wildermuth, Unearthing the Lost History of Seminole

Rock, 65 Emory L. J. 47, 52–53 (2015), this Court has

since expanded it to many contexts and to informal interpretations.

See id., at 52–53, 68–77, 86–92 (2015); Perez v.

Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015)

(THOMAS, J., concurring in judgment) (slip op., at 3–4).

Seminole Rock deference is constitutionally suspect. See

Mortgage Bankers, 575 U. S., at ___–___ (slip op., at 8–16).

It transfers “the judge’s exercise of interpretive judgment

to the agency,” which is “not properly constituted to exercise

the judicial power.” Id., at ___ (slip op., at 13). It also

undermines “the judicial ‘check’ on the political branches”

by ceding the courts’ authority to independently interpret

and apply legal texts. Id., at ___ (slip op., at 14). And it

results in an “accumulation of governmental powers” by

allowing the same agency that promulgated a regulation

to “change the meaning” of that regulation “at [its] discretion.”

Id., at ___ (slip op., at 16). This Court has never

“put forward a persuasive justification” for Seminole Rock

deference. Decker, supra, at 617 (Scalia, J. concurring in

part and dissenting in part); see also Mortgage Bankers,

supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 18–

23) (explaining why each of the proffered explanations for

the doctrine is unpersuasive).

Cite as: 583 U. S. ____ (2018) 3

THOMAS, J., dissenting

By all accounts, Seminole Rock deference is “on its last

gasp.” United Student Aid Funds, Inc. v. Bible, 578 U. S.

___, ___ (2016) (THOMAS, J., dissenting from denial of

certiorari) (slip op., at 1). Several Members of this Court

have said that it merits reconsideration in an appropriate

case. See, e.g., Mortgage Bankers, 575 U. S., at ___–___

(ALITO, J., concurring in part and concurring in judgment)

(slip op., at 1–2); id., at ___ (opinion of THOMAS, J.) (slip

op., at 23); Decker, supra, at 615–616 (ROBERTS, C. J.,

concurring). Even the author of Auer came to doubt its

correctness. See Mortgage Bankers, supra, at ___–___

(Scalia, J., concurring in judgment) (slip op., at 2–5);

Decker, supra, at 616–621 (opinion of Scalia, J.); Talk

America, Inc. v. Michigan Bell Telephone Co., 564 U. S. 50,

68–69 (2011) (Scalia, J., concurring).

This would have been an ideal case to reconsider Seminole

Rock deference, as it illustrates the problems that the

doctrine creates. While Garco was performing its obligations

under the contract, the base adopted an interpretation

of its access policy that read “wants and warrants” to

include “wants or warrants, sex offenders, violent offenders,

those who are on probation, and those who are

in a pre-release program.” App. to Pet. for Cert. 60a. The

Federal Circuit deferred to that textually dubious interpretation.

856 F. 3d, at 945. Thus, an agency was able to

unilaterally modify a contract by issuing a new “ ‘clarification’

with retroactive effect.” Decker, supra, at 620 (opinion

of Scalia, J.). This type of conduct “frustrates the

notice and predictability purposes of rulemaking, and

promotes arbitrary government.” Talk America, supra, at

69 (opinion of Scalia, J.).

True, the agency here is part of the military, and the

military receives substantial deference on matters of

policy. See Orloff v. Willoughby, 345 U. S. 83, 94 (1953).

But nothing about the military context of this case affects

the legitimacy of Seminole Rock deference. “The proper

4 GARCO CONSTRUCTION, INC. v. SPEER

THOMAS, J., dissenting

question faced by courts in interpreting a regulation is . . .

what the regulation means.” Mortgage Bankers, 575 U. S.,

at ___ (opinion of THOMAS, J.) (slip op., at 18) (emphasis

added). While the military is far better equipped than

the courts to decide matters of tactics and security, it is

no better equipped to read legal texts. Pointing to the

military’s policy expertise “misidentifies the relevant

inquiry.” Ibid.

Because this Court has passed up another opportunity

to remedy “precisely the accumulation of governmental

powers that the Framers warned against,” id., at ___

(slip op., at 16), I respectfully dissent from the denial of

certiorari.

(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35637219)



Reply Favorite

Date: March 19th, 2018 1:37 PM
Author: Costumed headpube

Oh, this fucker: https://twitter.com/mjs_DC/status/975733238567227392

(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35638049)



Reply Favorite

Date: March 19th, 2018 10:20 PM
Author: Flushed Flatulent Scourge Upon The Earth

i hate that guy with a burning passion

(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35641922)



Reply Favorite

Date: March 19th, 2018 10:32 PM
Author: floppy bistre church crotch

Who is that non-entity? Who cares?

(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35642037)



Reply Favorite

Date: March 19th, 2018 10:35 PM
Author: Costumed headpube



(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35642073)



Reply Favorite

Date: March 19th, 2018 10:32 PM
Author: Mint Marvelous Regret



(http://www.autoadmit.com/thread.php?thread_id=3922776&forum_id=2#35642039)