Response to Prof. Ronald Levin on ‘Auer Deference’

Last week, I posted about an ongoing symposium at Notice & Comment, regarding Auer deference to agency interpretations of their own regulations.

The Auer doctrine is among the most controversial subjects in administrative law. Critics advance three arguments:

  1. The doctrine encourages the drafting of vague rules, so that agencies may subsequently adopt interpretations that effectively amend the rules, but which have not gone through notice and comment;
  2. The doctrine is applied without regard to the administrative process that gives rise to the agency’s interpretation (unlike Chevron deference, Auer’s famous cousin), and thereby encourages exploitation of a “loophole” in the Administrative Procedure Act for interpretive policymaking;
  3. The doctrine exists in tension with the Separation of Powers principle.

To be sure, the first two arguments are linked—vague rules make it easier to take advantage of the procedural loophole. However, as we shall see, the link isn’t causal. In fact, arguments one and two are independent, and this distinction is essential to the ongoing debate over Auer.

As I note in a recent paper (from which this post is derived), Auer’s defenders have focused largely on the first criticism that the doctrine leads to mushy rules. For example, Prof. Ronald Levin yesterday posted a thoughtful contribution to the Auer symposium, in which he noted that there is absolutely no evidence that agencies have willfully written imprecise regulations, in order to take advantage of the Auer doctrine.

Explains Levin:

A problem with the argument, however, is that there appears to be no good evidence showing that this incentive has often – or for that matter ever – had the effect that the theorists ascribe to it. I am not saying that the evidence of the incentive effect is weak. That label would imply that there is at least some evidence of it – but, as best I can discover, the literature on this subject contains no evidence of it at all.

I’m a critic of the Auer status quo, but I wholeheartedly agree with Levin’s assessment. There is no empirical evidence that agencies write vague rules with Auer in mind. What is more, contrary to some of Auer’s critics, there is a strong incentive for agencies to write clear rules. In their provocative defense of Auer, Cass Sunstein and Adrian Vermeule note that presidential turnover encourages agencies to promulgate clear rules, in order to bind future administrations of a different political persuasion. Obviously, this incentive for clear rules lessens or even nullifies the incentive provided by Auer for vague rules, as identified by critics of the deference doctrine.

However, the unlikelihood of agencies penning vague rules does not impinge on the second criticism of Auer enumerated above—that the doctrine affords agencies the opportunity to take procedural shortcuts. Regardless of how hard drafters strive for clarity, the richness of the English language makes it easy for a determined agency to find ambiguity in virtually any non-quantitative regulatory text. Evidence abounds of the near-limitless linguistic possibilities with which to engineer interpretational uncertainty within laws and regulations. It is, for example, routine for Supreme Court Justices to disagree on whether the same word or phrase is ambiguous or plain in meaning. Similarly, the Justice Department demonstrates the fluidity of language when it argues, as it often does, that a statutory provision has a plain meaning, but, if not, that the agency’s interpretation merits controlling deference. A final example suggesting the near impossibility of avoiding textual ambiguities is the common scenario whereby each party to a controversy claims that its interpretation of the same term reflects the plain meaning of the statute, despite the fact that each interpretation directly contradicts one another.

This is not to advance a post-modern commentary on the nature of words. Rather, the point is to acknowledge the implausibility of a regulatory drafter writing in the language of “plain meaning.” In the real world, where ambiguity is in the eye of the beholder, an agency does not have to labor to engineer actionable uncertainty of meaning. This reality severs the causal relationship between a rule’s precision and subsequent opportunities to make policy through regulatory construction. Irrespective of the drafter’s intentions, the incentive and opportunity exists for later agency clarifications that implement substantive policy without undertaking inclusive administrative procedures.

What is more, I can point to evidence. Sometimes, the agency cites Auer deference as a justification for taking a procedural shortcut. As I explain in the aforementioned paper:

An example will help illustrate the possible administrative abuses associated with Auer deference. Under the Regional Haze program of the Clean Air Act, states are required to consult with one another in order to ensure that an upwind state’s emissions do not degrade visibility in downwind states. In a 2014 advanced notice of proposed rulemaking, the U.S. Environmental Protection Agency “clarified” its Regional Haze rules regarding the consultation process. The agency’s clarification engendered a new responsibility for upwind states to independently consider the approvability of downwind states’ visibility plans, whereas previously, upwind states were authorized to take downwind states at their word. The new interpretation applied retroactively to the nation as a whole. Remarkably, the EPA justified its new regulatory construction by citing the agency’s interpretive authority under the Auer doctrine.

Due to its wide-ranging scope and effect, the EPA’s 2014 Regional Haze clarification looks, for all intents and purposes, to be an amendment of an existing regulation. As previously explained, the difference between an interpretation of and an amendment to an existing rule is that latter must go through notice and comment rulemaking and the former does not. So it seems that the agency repackaged an amendment to a regulation as an interpretation of that regulation in order to circumvent procedural safeguards, which is precisely the result that critics fear under the Auer doctrine.  With the Regional Haze rule revision, the agency’s attempt to take a procedural shortcut appears obvious, because the EPA expressly relied on Auer deference to legitimate its actions. No doubt, agencies aren’t always so forthright when they employ Auer to change the rules without undergoing proper procedures. (see paper, pp 14-15 for citations).

The upshot is that Levin’s post does an excellent job refuting one of the three criticisms of Auer. But the other two remain. I should note here that I’m only concerned about the second criticism—that Auer encourages procedural shortcuts. Given that agency deference rests on a congressional delegation, I’m not terribly worried about the constitutional threat.

Finally, I should note that I believe there is a very simple solution to the valid criticism that Auer incents procedural shortcuts: Auer Step Zero. To read the empirical case for an Auer Step Zero, see my paper, The Simple Solution to Auer Problem