Business associations file amicus brief in Supreme Court case about notice-and-comment rulemaking

Client(s) Business associations

On behalf of the Chamber of Commerce of the United States, the American Fuel and Petrochemical Manufacturers, the American Health Care Association, the Business Roundtable, the National Association of Manufacturers, and the Securities Industry and Financial Markets Association, Jones Day filed an amicus brief in the Supreme Court of the United States asking the Court to restrain agencies' ability to avoid notice-and-comment rulemaking. In the amicus brief, the business organizations argued that the fuzzy line separating so-called "legislative" rules (which require notice and comment) and "interpretative" rules (which generally do not), combined with the deference that courts give to an agency's understanding of its own regulations, encourage agencies to circumvent notice and comment by promulgating vague legislative rules and then "interpreting" them to reach their preferred result. Although the Court ultimately held that notice and comment was not required in this case, several Justices wrote separately to express their concern about the sort of troubling scenario described above, and to indicate their willingness to reconsider the appropriateness of deference to agency interpretations in a future case.

Perez v. Mortgage Bankers Association, No. 13-1041 (U.S.); Nichols v. Mortgage Bankers Association, No. 13-1052 (U.S.)