Attorney General Paxton has joined an Oklahoma-led cert-stage amicus brief in the U.S. Supreme Court, challenging a decision of the U.S. Court of Appeals for the District of Columbia Circuit that extended excessive deference to federal agencies. Under the doctrine known as Cassell deference, the D.C. Circuit frequently rules that courts will not second-guess a federal agency’s decision to depart from its own precedents, without any need to explain its reasoning.
The D.C. Circuit receives the lion’s share of agency-review cases, but its excessive deference to bureaucratic agencies is misplaced. Although judicial deference to agency determinations can sometimes be appropriate, the Cassell doctrine enables federal agencies not only to set their own scope of power and create legal precedents, but also to re-interpret those precedents at will without any meaningful judicial review. This effectively turns agencies into a fourth branch of government unaccountable to constitutional checks and balances.
In the specific case at hand, NGL Supply Whole v. Federal Energy Regulatory Commission (FERC), FERC likely succeeded only because the D.C. Circuit liberally interpreted and applied the doctrine. The brief highlights this fact: “In short, the FERC prevailed by being conclusory in its analysis and leaving the D.C. Circuit to do the real work under Cassell deference.”
The amicus brief does not opine on the merits of this specific case, but rather encourages the Supreme Court to apply its more recent precedents to rein in the D.C. Circuit’s excessive deference under Cassell: “This amicus is solely opposed to the D.C. Circuit’s continued deference doctrines that appear unwarranted based on recent precedent of this Court.”
To read the full brief, click here.