Monday’s decisions in Perez v. Mortgage Bankers Association, holding that amendments to interpretative rules do not require notice-and-comment rulemaking, and Department of Transportation v. Association of American Railroads, holding that Amtrak is a governmental entity, continue to spawn coverage and commentary. At Procedurally Taxing, Patrick Smith suggests that, although Perez “is clearly significant in its direct application, . . . [w]hat may be even more significant about the opinion is what the concurring opinions in the case say about Auer.” At the blog of the American College of Environmental Lawyers, Seth Jaffe similarly contends that “[t]he truly interesting part of the case was in the concurring opinions. Both Justices Scalia and Thomas, effectively joined by Justice Alito, argued that Supreme Court decisions giving deference to agencies’ interpretation of their own rules have no constitutional foundation and should be overruled.” And a post about the railroad case at the International City/County Management Association argues that, although “a ruling that the proper comparison class in this case is all commercial and industrial taxpayers would have been even better, the Court’s ruling that lower courts must look at total taxes paid, and justifications for why particular competitors don’t pay particular taxes, will mean that 4-R Act discrimination cases may be less likely to succeed.”
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