Supreme Court Ruling Reaffirms Power of Federal Regulators
The Supreme Court today narrowly decided to uphold, with significant limits, a doctrine that has plagued the regulated community for years. The case, Kisor v. Wilkie, addressed the issue of whether courts should defer to an agency’s interpretation of its own regulations, known also as Auer deference.
NAHB supported the petitioner with amicus briefs on behalf of an industry coalition organized by the association. NAHB has long been concerned with this type of judicial deference because it can create incentives for agencies to avoid formal rulemaking processes, or create vague regulations that they can interpret and re-interpret at a later date. Either tactic prevents the regulated community from participating in the development of the rules that govern their activities.
Auer deference has harmed NAHB’s interest in a number of cases, including a Clean Water Act case where the court relied on Auer to affirm the finding of a violation against property owners who had constructed a ditch to build a residential subdivision.
In a fractured opinion written by Justice Elena Kagan, the Supreme Court declined to overrule its precedent establishing this deference doctrine, and instead identified a series of factors that courts should use when determining whether Auer deference is appropriate. The court stressed that, under this new formulation, the situations where Auer will be applied will be far fewer than is currently the case.
It remains to be seen whether the limitations recommended by the court will address the many problems that NAHB and others in the regulated community have raised.NAHB will vigilantly monitor the application of this re-imagined Auer deference in the lower courts, and engage in opportunities to ensure that the newly-outlined limitations are broadly applied.
Latest from NAHBNow
Nov 10, 2026
Which Stage of Construction Takes the Most Time When Building a Single-Family Home?
According to the latest NAHB/Well Fargo Housing Market Index (HMI) survey results, interior finishes (drywall, interior doors, painting, cabinets, countertops, plumbing fixtures, flooring, etc.) take an average of 6.4 weeks to complete, longer than any other major stage of single-family construction.
Advocacy
Nov 09, 2026
NAHB Mourns the Passing of Nicolas “Nick” P. Retsinas
Nicolas “Nick” P. Retsinas, a leader in local and national housing policy and advocacy, passed away last week at the age of 79.
Latest Economic News
Economics
Nov 10, 2026
Consumer Credit Growth Picks Up in the Third Quarter of 2026
Consumer credit growth accelerated in the third quarter of 2026, with both revolving and nonrevolving credit increasing at their fastest quarterly rates since 2022. Total outstanding consumer credit reached $5.22 trillion, continuing an upward trend that has strengthened over the past year.
Economics
Nov 10, 2026
Inflation Persists in October
Inflation remained elevated in October even as energy prices eased, raising expectations of another Fed rate hike. Shelter returned as the largest driver of headline inflation, accounting for over 30% of the monthly increase. Core inflation, which excludes volatile food and energy components, rose by 0.3% for the third consecutive month, suggesting broad-based price pressures across the economy.
Economics
Nov 09, 2026
Residential Building Worker Wage Growth Rebounds, but Real Wages Continue to Decline
Wage growth for residential building workers showed signs of a modest rebound in September 2026 following a sharp slowdown earlier in the year. According to the latest data from the U.S. Bureau of Labor Statistics, nominal wage growth picked up from its June pace, although it remained relatively modest.