Abandoning Administrative Common Law in Mortgage Bankers

Abstract

Perez v. Mortgage Bankers Association presents the Supreme Court with the opportunity to eliminate a rule of administrative common law that conflicts with the Administrative Procedure Act (“APA”). When Congress enacted the APA, it deliberately chose to exempt interpretive rules from the Act’s notice-and-comment requirements. The D.C. Circuit nonetheless invalidated a Department of Labor interpretive rule because it did not undergo notice and comment. The Supreme Court should respect the public deliberation reflected in the APA’s text and eliminate the D.C. Circuit’s administrative common law. Mortgage Bankers also raises questions about another doctrine of administrative common law: the Supreme Court doctrine of deferring to agency interpretations of their own regulations. But the briefing does not address whether that longstanding doctrine conflicts with the APA and whether it has received Congress’s imprimatur. The Court need not and should not address that doctrine until those questions are answered.

Keywords: administrative law, common law, Mortgage Bankers