What is deference?
Deference is judicial respect for agency interpretations of ambiguities in texts that carry the force and effect of law.
Deference can be binding or nonbinding. “Binding” deference means that a court will uphold an agency’s interpretation—so long as it is reasonable—even if the court thought it had a better reading of the text at controversy.
Nonbinding deference is accorded by Article III courts to agency interpretations to the extent they are persuasive. That said, there is robust debate about whether or not “nonbinding deference” is an oxymoron. Some argue that a textual interpretation that “persuades” the court is no different from any argument in any legal brief; others argue that nonbinding deference can add a little oomph, albeit ill-defined, to the acceptability of an agency’s established interpretation. For my part, I side with the former.
Why does deference matter?
Deference is power. In practice, resolving ambiguity in any text with the force and effect of law entails policymaking. Think of it this way: Whenever a policymaking body (be it Congress or an administrative agency) writes a text with the force of law (either an enabling statute or an implementing rule), it cannot possibly account for every possible detail of the regulatory scheme it is creating. Such a task would involve omniscience and an infinite amount of words. As a result of this practical reality, there are gaps (or “interstices”) in all enabling statutes and regulations. The textual manifestation of these gaps is ambiguity, and, therefore, filling in these gaps requires interpretation. Thanks to the complexity of the English language, there are almost always multiple interpretations of all textual ambiguities in any statute or rule, and each interpretation would result in a different policy. To bring it all together: interpreting texts with the force of law is policymaking. When controlling deference applies, agencies render this policymaking, based on the political preferences of the presidency. When the courts render this policymaking, they do so based on principles of textual construction.
What are the various binding and non-binding deference regimes called?
Chevron deference is binding judicial respect for an agency’s reasonable interpretations of its own enabling statute.
Auer or Seminole Rock deference is binding judicial respect for an agency’s reasonable interpretations of the regulations it writes.
Skidmore deference is nonbinding respect for agency textual interpretations to the extent they are persuasive.
What are the justifications for the different deference doctrines?
Famously, in Chevron v. NRDC, the U.S. Supreme Court recognized that resolving statutory ambiguity entails lawmaking and concluded that Congress intended for administrative agencies to possess interpretive policymaking authority rather than judges, due to the former’s comparative strengths in expertise and accountability. Of course, Congress never stipulated an institutional preference for administrative agencies, and not courts, to make policy by resolving statutory ambiguities. Instead, the Court inferred that such a congressional instruction is congenital to a delegation of lawmaking authority to administrative agencies through the enactment of enabling statutes.
In Pauley v. Bethenergy Mines, Inc., the Supreme Court explained that Auer deference is legitimated by the same factor that warrants Chevron deference—i.e., Auer deference stems from an inferred congressional delegation of interpretive authority.
The origins of Skidmore are a matter of dispute. Some believe that Skidmore is an interpretive tool that springs from the judicial power accorded judges in Article III of the Constitution. Others argue that Skidmore, like Chevron and Auer, is a reflection of inferred congressional intent. The origins of Skidmore are actually of huge importance. If Skidmore is a function of congressional intent, then it follows that Congress may cabin the courts’ use of the doctrine. If, however, Skidmore is inherent to the judicial power accorded to Article III courts by the Constitution, then Congress cannot curtail Skidmore.
Do I think implicit delegation of interpretive policymaking power is optimal?
Heck no! It’s a bit strange that such a consequential doctrine is based on a legal fiction. I would much prefer if Congress expressly decided, either wholesale or on a statute-by-statute basis, whether courts, agencies, or States should receive deference. Regarding that last point, I would much prefer if States in cooperative federalism regimes received all forms of deference (Chevron, Auer, arbitrary & capricious, substantial evidence, etc.). Here, I should call out by name the excellent research by Prof. Kent Barnett, who, in a recent paper, described the doctrinal implications of the Dodd-Frank bill, in which Congress expressly stipulated what standard of review a court should adopt (Skidmore or Chevron) in resolving certain statutory ambiguities in that law. Prof. Barnett’s super-smart paper demonstrates that Congress has the wherewithal to make its voice heard.
Criticisms to Deference Doctrines & My Response to These Criticisms
Criticism: All forms of binding deference run afoul of Article III courts’ constitutional responsibility to say what the law is.
My response: I’m not persuaded, as I believe Congress, the creator of all agencies and the overlord of Article III jurisdiction, can constitutionally delegate interpretive policymaking power to either courts or agencies, because doing so is necessary and proper to the execution of the statute.
Criticism: The Auer doctrine exists in tension with the Separation of Powers principle because it results in a combination of legislative (i.e., law-writing) and judicial (i.e., law-exposition) functions in the Executive Branch.
My response: I have a great deal of sympathy for this argument. As a libertarian, I’m more worried than most about the accretion of power in the executive. The judiciary has been complicit in this rise, through a number of (IMHO wrongheaded) holdings (e.g., Vermont Yankee and Chadha). At the same time, congressional oversight of the executive has atrophied due a centralization of party control over committees and a sacrifice of institutional pride at the altar of partisan loyalty.
Notwithstanding what I perceive to be a present deficit in institutional checks on the executive, I believe Congress is constitutionally empowered to decide whether an agency merits controlling deference for interpretations of its own regulations. Moreover, I find reasonable the Supreme Court’s logic in Chevron—though I also believe that the ruling should have precipitated a response from Congress. Finally, as many others have noted, delegating interpretive policymaking power to administrative agencies is little different from the widely accepted practice of delegating to agencies the authority to make policy through case-by-case adjudication.
Criticism: All forms of binding deference violate the Administrative Procedure Act’s directive that a reviewing court “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”
My response: This criticism does raise an obvious question of textual construction: Shouldn’t a statutory provision specific to a given matter take precedence over an inferred congressional intent regarding that same matter? But, again, the Supreme Court has decided otherwise, and Congress has only recently taken baby steps in codifying its true intentions regarding which branch of government should hold interpretive policymaking power. The upshot is that if one accepts the constitutional justification for binding deference (and I do until Congress shows otherwise), it follows that the Congress’s inferred intent implicit to each enabling statute is actually a more specific direction than the judicial review provision of the APA.
Criticism: Auer deference leads to the drafting of vague rules.
My response: I’m unpersuaded, as I explain here.
Criticism: Auer deference encourages procedural shortcuts.
My response: YES! As noted above, both forms of binding respect—Auer and Chevron—are justified for the same reasons, and they result in the same sort of agency policymaking. And yet, despite their common basis and effect, the Chevron and Auer deference doctrines are employed by the Supreme Court in a dissimilar fashion, and the difference influences agency incentives arguably for the worse.
On one hand, procedural formality is highly relevant to the Chevron framework. The Supreme Court has determined that not all statutory interpretations reflect a congressional delegation of policymaking power. In a process known as Chevron Step Zero, the Court limits controlling deference for statutory interpretations to those that are promulgated in the exercise of a congressionally delegated authority to make rules carrying the force of law. In drawing this distinction, the Court has established a presumption that interpretations originating from relatively formal administrative procedures, such as notice and comment rulemakings or formal adjudications, merit Chevron deference.
On the other hand, administrative process does not factor at all into the Court’s reasoning for Auer. Indeed, a significant holding of Auer’s underlying ruling is that an agency could win controlling deference for an interpretation first set forth in the course of litigation, which is perhaps the most informal possible administrative procedure.
Many critics, myself included, question why the Court has implemented a Chevron Step Zero, but not an Auer Step Zero, in spite of the fact that the two doctrines share the same justification and effect. We argue that the Auer doctrine’s blindness to administrative process facilitates a loophole through procedural safeguards otherwise mitigated by the Chevron doctrine’s presumption in favor of interpretations contained in formal formats.
For more, see my empirical support for an Auer Step Zero, The Simple Solution to Auer Problem.