THIS SOUNDS OBSCURE, BUT IT’S A BIG DEAL: Justice Department Asks Court To Narrow Auer Deference.
Auer deference (also known as Seminole Rock deference) is one of the more controversial doctrines in adminsitrative law. This doctrine provides that where a federal regulation is ambiguous, the promulgating agency’s interpretation of that regulation shoud receive “controlling weight.” As articulated by Justice Scalia in Auer v. Robbins, this holds without regard for how or when the agenc articulated its interpretation, provided the reviewing court may be assured that the interpretation offered reflects the agency’s official position.
Auer deference may sound like an unobjectionable way to resolve regulatory ambiguity. In practice, however, Auer deference enables agencies to evade a range of administrative law norms designed to ensure notice and accontability, and facilitates agency aggrandizement of their own authority. I review some of the problems with Auer in this brief symposium article, “Auer Evasions.”
In recent years, several justices have expressed their discomfort with Auer, including Justice Scalia, who expressed regrets about the decision before his death. Next month, the Supreme Court will hear oral argument in Kisor v. Wilkie, in which the Court will expressly consider whether to overturn Auer. As you might expect, I think it should, for reasons explained in the above-cited article, this SCOTUSBlog essay, and my amicus brief with Michael McConnell, Richard Epstein, the Cato Institute, and Cause of Action.
Auer lets agencies enact vague regulations, then “interpret” them to achieve desired results without going through notice and comment.
