Everything You Should Know about ‘Auer Deference,’ the Most Pressing Issue in Administrative Law

Among the most controversial topics in administrative law is the propriety of Article III courts giving binding deference to agency interpretations of their own regulations. This practice is known as Auer or Seminole Rock deference, after two Supreme Court opinions that gave rise to the doctrine.

Critics argue that Auer deference operates in tension with the Constitution’s separation of powers, because it combines law-drafting and law-exposition in administrative agencies. Other critics argue that Auer encourages procedural shortcuts, due to the fact that courts award binding deference to an agency’s regulatory construction regardless of the administrative process employed by the agency in issuing its interpretation. By contrast, courts presumptively reserve the other major controlling deference doctrine—Chevron respect for reasonable agency interpretations of their own statutes—for interpretations contained in “formal” procedural formats that carry the force and effect of law.

On the other hand, Auer’s defenders stress that expert administrative agencies are in the best position to interpret their own rules. They also argue that reforming Auer deference would entail undue administrative burdens on courts and agencies.

Over at Notice & Comment, the blog of the Yale Journal on Regulation, Prof. Aaron Nielson has established an invaluable forum where Auer’s critics, defenders, and commentators can put all their cards on the table. To be precise, the blog is holding a two week online symposium aimed at creating “the most complete collection of thoughts on Seminole Rock ever assembled.” Authors will include many of the heaviest hitters in administrative law—both scholars (e.g., the world’s most cited legal scholar, Cass Sunstein) and practitioners (e.g., superstar attorney Allyson Ho). Topics will include Auer’s history, empirical studies of Auer in practice, and prognostications of how the U.S. Supreme Court or Congress might address the doctrine.

Each contribution to the symposium is short and reader-friendly. For the most part, each post serves to summarize the author’s underlying research, which can be easily accessed if the reader wants to take a deeper dive into the subject matter. The blog posts are akin to CliffsNotes for the universe of scholarly writings on Auer. The symposium is essential reading for anyone interested in the administrative state and administrative law.

Finally, I’d be remiss if I failed to note that I’m a contributor to the symposium, although honesty requires me to qualify that I’m the least-heaviest hitter (by far) of this otherwise distinguished group. Over the last two years I put together a comparative analysis of deference principles, including Auer, as applied in the U.S. Courts of Appeals from 1993 to 2013. In my symposium post, available here, I explain briefly both the study methodology and its results.

  • Find Prof. Nielson’s overview of the symposium here.
  • Find the symposium entries here.
  • And here’s a write-up of the symposium by Prof. Jonathan Adler (a former CEI staffer), who is also a contributor.