Auer deference

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.


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Auer deference, in the context of administrative law, is a principle of judicial review of federal agency actions that requires a federal court to yield to an agency's interpretation of an ambiguous regulation that the agency has promulgated. In the context of Auer deference, courts uphold agency interpretations of ambiguous regulations unless those interpretations are plainly erroneous or inconsistent with the regulation. Unlike Chevron deference, which requires that a federal court defer to an agency's interpretation of a statute that the agency administers if the underlying statute is unclear and the agency's interpretation is deemed reasonable, Auer deference only applies to an agency's interpretation of its own unclear regulation.[1]

The United States Supreme Court upheld Auer deference but narrowed its scope in the 2019 case Kisor v. Wilkie. For more information about the court's decision, click here.

Background

See also: Auer v. Robbins

The Supreme Court's decision in the 1997 case Auer v. Robbins stemmed from the court's 1984 opinion in Chevron v. Natural Resources Defense Council. The Chevron decision created a principle known as Chevron deference, which requires a federal court to defer to an agency's interpretation of a statute that the agency administers if the underlying statute is unclear and the agency's interpretation is deemed reasonable. In Auer v. Robbins, the court expanded on Chevron deference and established what is now known as Auer deference, or Seminole Rock deference.[2][3]

Auer deference reaffirmed a deference principle first described in the court's 1945 ruling in Bowles v. Seminole Rock & Sand Co. Under Auer deference, a federal court must defer to an agency’s interpretation of an ambiguous regulation that the agency has promulgated. According to Justice Frank Murphy's opinion in Bowles v. Seminole Rock & Sand Co., a court must yield to an agency's interpretation of its own unclear regulation unless the court finds that the interpretation is "plainly erroneous or inconsistent with the regulation."[2][1][4]

Trump administration

The Trump administration was open about its desire to nominate judicial appointees who were, according to a March 2018 New York Times article, "devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight." The criteria were first applied when nominating Justice Neil Gorsuch to the U.S. Supreme Court. Gorsuch's opposition to the Chevron doctrine made him the model for Trump administration judicial appointments.[5]

Statements from U.S. Supreme Court justices on Auer deference

This section features statements on Auer deference from U.S. Supreme Court justices.

Stephen Breyer: Support for Auer deference

During oral argument in Kisor v. Wilkie (2019), Justice Stephen Breyer argued that rejecting Auer deference "sounds like the greatest judicial power grab since Marbury versus Madison."[6] According to Breyer, judges should defer to agency expertise regarding their own regulations because agency officials often know more about technical policy details than judges.[6]

Neil Gorsuch: Opposition to Auer deference

Justice Neil Gorsuch argued in his 2019 concurrence for Kisor v. Wilkie that Auer deference poses challenges for due process and procedural rights because it creates judicial bias in favor of the federal government:

In disputes involving the relationship between the government and the people, Auer requires judges to accept an executive agency’s interpretation of its own regulations even when that interpretation doesn’t represent the best and fairest reading. This rule creates a 'systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.' Nor is Auer’s biased rule the product of some congressional mandate we are powerless to correct: This Court invented it, almost by accident and without any meaningful effort to reconcile it with the Administrative Procedure Act or the Constitution. A legion of academics, lower court judges, and Members of this Court—even Auer’s author—has called on us to abandon Auer. Yet today a bare majority flinches, and Auer lives on.[7]


Gorsuch also claimed that the inconsistent application of Auer deference over time has created confusion for lower courts:

Auer has also become 'a doctrine of uncertain scope and application.' This Court has never offered meaningful guidance on how to decide whether the agency’s reading is 'reasonable' enough to demand judicial deference—and lower courts have drawn that line in wildly different places. Deepening the confusion, this Court and lower courts have, over time, tried to soften Auer’s rigidity by declaring that it 'might' not apply in some ill-defined circumstances, such as when the agency’s interpretation 'conflicts with a prior interpretation' or reflects a 'convenient litigating position' or a 'post hoc rationalization' for past agency action. All this has resulted in 'widespread confusion' about when and how to apply Auer deference.[7]

Elena Kagan: Support for Auer deference

Justice Elena Kagan defended the role of Auer deference in the 2019 opinion for Kisor v. Wilkie, arguing that an agency's rulemaking authority includes the power to interpret regulations:

We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. Congress, we have pointed out, routinely delegates to agencies the power to implement statutes by issuing rules. But Congress almost never explicitly assigns responsibility to deal with that problem, either to agencies or to courts. Hence the need to presume, one way or the other, what Congress would want. And as between those two choices, agencies have gotten the nod. We have adopted the presumption—though it is always rebuttable—that 'the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.' Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue.[7]

Brett Kavanaugh: Opposition to Auer deference

Justice Brett Kavanaugh discussed his opposition to Auer deference during a keynote address at George Mason University Law School in June 2016. His remarks featured a summary of former Supreme Court Justice Antonin Scalia's dissent in Decker v. Northwest Environmental Defense Center, which argued against Auer deference on the grounds that it violates the separation of powers. Kavanaugh himself went on to predict that Auer deference would eventually be overruled:[8]

“ [A]s [Justice Scalia] explained, Auer violates a fundamental principle of separation of powers: that the power to write a law and the power to interpret it cannot rest in the same hands. Justice Scalia pointedly noted that Auer was not a logical corollary to Chevron, but a dangerous permission slip for the arrogation of power. In the end Justice Scalia said that Auer ‘contravenes one of the great rules of separation of powers, he who writes a law must not adjudge its violation.’ On the law, Justice Scalia explained that Auer is one big, unexplained, unjustified ipse dixit, and there could be no doubt, he pointed out that it has huge practical consequences for individual liberty when the law writer is also the law interpreter. In short, I predict that Auer will someday be overruled and that Justice Scalia's dissent in Decker will be the law of the land.[9] ”


Kavanaugh later argued in his 2019 concurrence for Kisor v. Wilkie that Auer deference circumvents independent judicial analysis and that the court is equipped to determine the best interpretation of a challenged regulation:

If a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation of the regulation at issue. After doing so, the court then will have no need to adopt or defer to an agency’s contrary interpretation. In other words ... courts will have no reason or basis to put a thumb on the scale in favor of an agency when courts interpret agency regulations.


Formally rejecting Auer would have been a more direct approach ... Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here.[7]

Antonin Scalia: Opposition to Auer deference

In his 2013 partial dissent for Decker v. Northwest Environmental Defense Center, Justice Antonin Scalia argued that Auer deference violates the separation of powers:[10]

“ The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is 'plainly erroneous or inconsistent with the regulation.' But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense 'inconsistent' with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.


Our cases have not put forward a persuasive justification for Auer deference. [...] Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them. [...] In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.[11][9]

”


Scalia later called for the court to abandon Auer deference altogether in his 2015 concurrence for Perez v. Mortgage Bankers Association:

As I have described elsewhere, the rule of Chevron, if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action, where '[s]tatutory ambiguities ... were left to reasonable resolution by the Executive.' I am unaware of any such history justifying deference to agency interpretations of its own regulations. And there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means. I would therefore restore the balance originally struck by the APA with respect to an agency's interpretation of its own regulations, not by rewriting the Act in order to make up for Auer, but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct.[12]

Sonia Sotomayor: Support for Auer deference

During oral argument in Kisor v. Wilkie (2019), Justice Sonia Sotomayor defended Auer deference, arguing that it was based on the principle of agency expertise. Agencies, she claimed, have a better understanding than judges of particular regulatory needs and must give regulated parties a sense of how their conduct will be evaluated.[6] She added that "regulated parties should know where to start, and the best people who can tell them is the agency who's responsible to the public for having sound interpretations or reasonable interpretations."[6]

Clarence Thomas: Opposition to Auer deference

Justice Clarence Thomas argued in his 2015 concurrence for Perez v. Mortgage Bankers Association that Auer deference violates the separation of powers by transferring the judicial power to interpret the law to the executive branch:

“ I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an executive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.[13][9] ”

Noteworthy events

U.S. Supreme Court upholds Auer, lays out limitations (June 26, 2019)

Kisor v. Wilkie was a United States Supreme Court case that upheld the idea that courts should defer to an agency's reasonable interpretation of its own ambiguous regulations in limited circumstances.[14] The case involved whether the court should overturn Bowles v. Seminole Rock & Sand Co. (1945) and Auer v. Robbins (1997), both of which figure prominently in the expansion of the administrative state. The court decided to keep those precedents, but articulated the narrow range of agency regulatory interpretations that qualify for Auer deference.[14]

In Kisor, the U.S. Department of Veterans Affairs's (VA) had interpreted the term "relevant" in one of its regulations to deny Marine Corps veteran James Kisor retroactive disability benefits.[15] The case asked whether courts should defer to the VA's interpretation.[15] The United States Court of Appeals for the Federal Circuit used Auer deference to uphold the VA's interpretation of the term.[15][14] The U.S. Supreme Court vacated the Federal Circuit's judgment and sent the case back for that court to decide whether the regulatory interpretation at issue really qualifies for Auer deference.[14]

Federal judges arrive at disparate conclusions regarding Auer deference and agency guidance (October 22, 2018)

See also: Guidance

On October 22, 2018, a three-judge panel of the United States Court of Appeals for the 6th Circuit issued dissimilar conclusions in U.S. v. Havis that either challenged or upheld the use of Auer deference.[16][17]

The case involves the sentencing of Jeffrey Havis on a firearms charge in Tennessee. The United States Sentencing Commission increased Havis’ base sentence due to a prior conviction for attempting to deliver cocaine. Havis argued that the commission’s sentencing guidelines only call for enhanced sentences in the case of a completed drug transfer. The sentencing guidelines for attempted transfers are only featured in the agency’s commentary on sentencing guidelines and, Havis claimed, are not entitled to Auer deference.[16][17]

Commentary is a form of agency guidance—documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules issued through one of the rulemaking processes of the Administrative Procedure Act (APA).[16][17]

The Sixth Circuit upheld Havis’ sentence due to precedent in the 2012 case U.S. v. Evans, which held that the sentencing guidelines include attempts to sell or distribute drugs. However, all three judges on the panel—Amul Thapar, Jane Stranch, and Martha Daughtrey—agreed that the 2012 court may have reached the incorrect conclusion by treating agency guidance as binding. In order to overturn precedent, Thapar and Stranch agreed that the case would need to be heard by the Sixth Circuit en banc or by the United States Supreme Court. Daughtrey dissented and argued that U.S. v. Evans was not controlling precedent because the case did not address Havis' concerns regarding the separation of powers.[16][17]

Thapar criticized Auer deference in his concurrence, arguing that the deference principle violates the separation of powers by calling for federal courts to yield to agency interpretations of their own rules. "How is it fair in a court of justice for judges to defer to one of the litigants?” questioned Thapar. "In essence, the argument boils down to this—the government is populated by experts and when they speak we should tip the scales of justice in their favor. Such deference is found nowhere in the Constitution—the document to which judges take an oath.”[16][17]

Stranch, on the other hand, defended Auer deference in her concurrence. She argued that “[t]he current arguments for curtailing agency deference risk dismissing a system that Congress created out of a need to employ the significant expertise held by agencies and their stakeholders in complex areas of the law and instead substituting courts that are ill-equipped for the task.”[16][17]

Should Havis seek further review, the case would be reheard by the full Sixth Circuit.[16][17]

Supreme Court declined to reconsider Auer deference (March 19, 2018)

The Supreme Court of the United States announced on March 19, 2018, that it had declined to grant certiorari and hear an appeal of Garco Construction v. Speer, a case that challenged the application of Auer deference in disputes over government contracts.[18]

Garco Construction v. Speer questioned the United States Court of Appeals for the Federal Circuit’s application of Auer deference, in which the judiciary defers to an agency’s interpretation of its own rules. Garco Construction argued that the Air Force had violated the rules of a contract between the two parties and, therefore, its interpretations of its own rules were not entitled to deference from the judiciary. The U.S. Department of Justice, however, urged the Supreme Court not to hear the case, stating that "although Garco’s criticism has 'merits in other contexts,' the Air Force’s reading of its rules was correct," according to Reuters.[18]

Supreme Court Justices Clarence Thomas and Neil Gorsuch dissented from the court's decision not to hear the case. The justices argued that Garco Construction v. Speer presented a chance to reconsider the use of Auer deference and that the court had "passed up another opportunity to remedy ‘precisely the accumulation of governmental powers that the Framers warned against.’”[19]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," January 1, 2008
  2. ↑ 2.0 2.1 Yale Law & Policy Review, "The Uneasy Case Against Auer and Seminole Rock," January 28, 2015
  3. ↑ U.S. Court of Appeals for the Fourth Circuit, "G.G., by his next friend and mother, Deirdre Grimm v. Gloucester County School Board, April 19, 2016
  4. ↑ JUSTIA, "Bowles v. Seminole Rock & Sand Co. 325 U.S. 410 (1945)," accessed September 13, 2017
  5. ↑ New York Times, "Trump’s New Judicial Litmus Test: Shrinking ‘the Administrative State’," March 26, 2018
  6. ↑ 6.0 6.1 6.2 6.3 Supreme Court of the United States, "Kisor v. Wilkie, Oral Argument," March 27, 2019
  7. ↑ 7.0 7.1 7.2 7.3 Justia, "Kisor v. Wilkie," 2019
  8. ↑ Common Dreams, "Kavanaugh Has Publicly Discussed Cases Before, Including Those He Would Like to Overturn," September 5, 2018
  9. ↑ 9.0 9.1 9.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  10. ↑ JUSTIA, "Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013)," accessed May 4, 2019
  11. ↑ Internal citations and quotations have been omitted
  12. ↑ United States Supreme Court, "Perez v. Mortgage Bankers Association," 2015
  13. ↑ Internal citations and quotations have been omitted
  14. ↑ 14.0 14.1 14.2 14.3 Supreme Court of the United States, "Kisor v. Wilkie," June 26, 2019
  15. ↑ 15.0 15.1 15.2 United States Court of Appeals for the Federal Circuit, "Kisor v. Shulkin, September 7, 2017
  16. ↑ 16.0 16.1 16.2 16.3 16.4 16.5 16.6 Reuters, "6th Circuit judge (and SCOTUS short-lister) calls for end to Auer deference," October 23, 2018
  17. ↑ 17.0 17.1 17.2 17.3 17.4 17.5 17.6 Reason, "Three Judges, Four Opinions, and a Debate on Auer Deference," October 23, 2018
  18. ↑ 18.0 18.1 U.S. News & World Report, "U.S. Top Court Will Not Hear Challenge to Federal Agency Power," March 19, 2018
  19. ↑ Cato Institute, "Supreme Court, Over Thomas/Gorsuch Dissent, Passes Up Chance to Rein in Administrative State," March 20, 2018
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