March 4, 2019

Whitehouse Files Brief Urging Supreme Court to Uphold Federal Agency Independence

Washington, DC
 – Senator Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee and an outspoken opponent of special interest capture of government, submitted a friend-of-the-court brief today with the Supreme Court in Kisor v. Wilkie, a challenge to long-standing precedent protecting the independence of federal agencies.  In his brief, Whitehouse describes how Kisor is the latest chapter in a sustained effort by large corporate and radical right interests to prevent the federal government from regulating in the public interest.  In the face of this effort, Whitehouse argues, the knowledge and independence of federal agencies is a vital check on the corporate influencers seeking to seize control of their own regulators.

Administrative agencies perform a key role in the constellation of American government, protecting the public from forces of immense political power and influence,” Whitehouse writes.  “They bring a special combination of technical substantive expertise, focused persistence and adaptiveness in the face of complex problems, and relative independence from raw political pressure.  Obviously, this will annoy forces of influence for whom the deployment of raw political power confers immense advantage.  The Court should be wary of upsetting this decades-old balance to the advantage of those forces of influence.  They may prosper by incrementally moving the arena of decision to an overwhelmed, technically inexpert and politically malleable Congress, or to equally inexpert courtrooms, but the public would pay the price.”

Kisor centers on a challenge by a veteran seeking disability benefits from the U.S. Department of Veterans Affairs (VA).  In denying the veteran’s claim, the VA relied upon Supreme Court precedent in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., as authority to permit it to interpret its own regulations.

Whitehouse writes that Kisor and the radical right’s attack on so-called “Auer deference” is part of a strategy to get the Supreme Court to prevent Congress from effectively regulating on a wide range of issues.  It also reflects the Court’s sharp turn under Chief Justice Roberts away from addressing the “dangers to honest governance posed by massive corporate forces.”

Whitehouse has filed several amicus briefs as a Senator arguing in favor of government transparency and independence from special interest influence, including two with the late Senator John McCain (R-AZ) seeking to uphold protections against the unlimited spending in elections unleashed by the Supreme Court’s Citizens United decision.
Read Whitehouse’s full brief here.


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