Cite as: 583 U. S. ____ (2018)            1

                     THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
GARCO CONSTRUCTION, INC. v. ROBERT M. SPEER,
      ACTING SECRETARY OF THE ARMY
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

              No. 17–225.   Decided March 19, 2018


  The petition for a writ of certiorari is denied.
  JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting from the denial of certiorari.
  Petitioner Garco Construction, Inc. (Garco), had a con-
tract with the Army Corps of Engineers to build housing
units on Malmstrom Air Force Base. As part of its con-
tract, Garco agreed to comply with all base access policies.
After construction began, the base denied access to certain
employees of Garco’s subcontractor. Although the text of
the base’s access policy required only a “wants and war-
rants” check, App. to Pet. for Cert. 105a, the base clarified
that the policy also required background checks and ex-
cluded many individuals with criminal histories—even if
those individuals did not have any wants or warrants.
Garco’s request for an equitable adjustment of the contract
was denied, and the Armed Services Board of Contract
Appeals denied Garco’s appeal. The Court of Appeals for
the Federal Circuit affirmed. Despite acknowledging
“some merit” to Garco’s argument that “ ‘wants and war-
rants’ ” means only wants and warrants, the Federal Cir-
cuit deferred to the base’s interpretation of its access
policy under Auer v. Robbins, 

(1997). 

, 943 (2017).
  Garco filed a petition for certiorari, asking whether this
Court’s decisions in 

, and Bowles v. Seminole
Rock & Sand Co., 

(1945), should be over-
ruled. I would have granted certiorari to address that
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                      THOMAS, J., dissenting

question.
   Seminole Rock and Auer require courts to give “control-
ling weight” to an agency’s interpretation of its own regu-
lations. Seminole 

; accord, 

,
at 461. To qualify, an agency’s interpretation need not be
“the best” reading of the regulation. Decker v. Northwest
Environmental Defense Center, 

, 613 (2013).
It need only be a reading that is not “plainly erroneous or
inconsistent with the regulation.” 

marks omitted). Although Seminole Rock deference
was initially applied exclusively “in the price control con-
text and only to official agency interpretations,” Knudsen
& Wildermuth, Unearthing the Lost History of Seminole
Rock, 65 Emory L. J. 47, 52–53 (2015), this Court has
since expanded it to many contexts and to informal inter-
pretations. See 

68–77, 86–92 (2015); Perez v.
Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015)
(THOMAS, J., concurring in judgment) (slip op., at 3–4).
   Seminole Rock deference is constitutionally suspect. See
Mortgage Bankers, 575 U. S., at ___–___ (slip op., at 8–16).
It transfers “the judge’s exercise of interpretive judgment
to the agency,” which is “not properly constituted to exer-
cise the judicial power.” Id., at ___ (slip op., at 13). It also
undermines “the judicial ‘check’ on the political branches”
by ceding the courts’ authority to independently interpret
and apply legal texts. Id., at ___ (slip op., at 14). And it
results in an “accumulation of governmental powers” by
allowing the same agency that promulgated a regulation
to “change the meaning” of that regulation “at [its] discre-
tion.” Id., at ___ (slip op., at 16). This Court has never
“put forward a persuasive justification” for Seminole Rock
deference. 

(Scalia, J. concurring in
part and dissenting in part); see also Mortgage 

, at ___–___ (opinion of THOMAS, J.) (slip op., at 18–
23) (explaining why each of the proffered explanations for
the doctrine is unpersuasive).
                 Cite as: 583 U. S. ____ (2018)            3

                    THOMAS, J., dissenting

   By all accounts, Seminole Rock deference is “on its last
gasp.” United Student Aid Funds, Inc. v. Bible, 578 U. S.
___, ___ (2016) (THOMAS, J., dissenting from denial of
certiorari) (slip op., at 1). Several Members of this Court
have said that it merits reconsideration in an appropriate
case. See, e.g., Mortgage Bankers, 575 U. S., at ___–___
(ALITO, J., concurring in part and concurring in judgment)
(slip op., at 1–2); id., at ___ (opinion of THOMAS, J.) (slip
op., at 23); 

–616 (ROBERTS, C. J.,
concurring). Even the author of Auer came to doubt its
correctness. See Mortgage 

, at ___–___
(Scalia, J., concurring in judgment) (slip op., at 2–5);

–621 (opinion of Scalia, J.); Talk
America, Inc. v. Michigan Bell Telephone Co., 

,
68–69 (2011) (Scalia, J., concurring).
   This would have been an ideal case to reconsider Semi-
nole Rock deference, as it illustrates the problems that the
doctrine creates. While Garco was performing its obliga-
tions under the contract, the base adopted an interpreta-
tion of its access policy that read “wants and warrants” to
include “wants or warrants, sex offenders, violent offend-
ers, those who are on probation, and those who are
in a pre-release program.” App. to Pet. for Cert. 60a. The
Federal Circuit deferred to that textually dubious inter-

. Thus, an agency was able to
unilaterally modify a contract by issuing a new “ ‘clarifica-
tion’ with retroactive effect.” 

(opin-
ion of Scalia, J.). This type of conduct “frustrates the
notice and predictability purposes of rulemaking, and
promotes arbitrary government.” Talk 

(opinion of Scalia, J.).
   True, the agency here is part of the military, and the
military receives substantial deference on matters of
policy. See Orloff v. Willoughby, 

, 94 (1953).
But nothing about the military context of this case affects
the legitimacy of Seminole Rock deference. “The proper
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                     THOMAS, J., dissenting

question faced by courts in interpreting a regulation is . . .
what the regulation means.” Mortgage Bankers, 575 U. S.,
at ___ (opinion of THOMAS, J.) (slip op., at 18) (emphasis
added). While the military is far better equipped than
the courts to decide matters of tactics and security, it is
no better equipped to read legal texts. Pointing to the
military’s policy expertise “misidentifies the relevant
inquiry.” 

has passed up another opportunity
to remedy “precisely the accumulation of governmental
powers that the Framers warned against,” id., at ___
(slip op., at 16), I respectfully dissent from the denial of
certiorari.