This Article provides empirical answers to several pressing questions in the ongoing debate over the Auer doctrine — i.e., controlling judicial deference to an agency’s interpretation of its own regulations.
The study is based on an original dataset of variables attendant to 1,118 agency interpretations across 1,048 published U.S. Courts of Appeals opinions. The dataset includes all federal circuit court decisions that invoked Auer or related cases from 1993 to 2013. In order to allow for a comparative analysis, the author employed simple random sampling to create samples representative of populations of U.S. Courts of Appeals opinions that invoked the other two primary deference principles: controlling Chevron deference to an agency’s interpretation of its own enabling statutes and non-controlling Skidmore respect.
For each interpretation, the author recorded identifying information and whether the government’s interpretation was accepted by the court. Also, each interpretation was put into one of twelve categories of administrative procedure. The results of this study point to a number of significant conclusions.
For starters, the data suggest Auer deference has narrowed in federal circuit courts over the last decade in the wake of a number of Supreme Court decisions, dissents, and concurrences that either substantively constrained or otherwise expressed dissatisfaction with the doctrine. Before 2006, the government’s win rate under Auer was 77 percent; after 2006, its win rate was 71 percent. Whereas the government’s pre-2006 win rate under Auer significantly exceeds its win rate under Chevron deference, the government’s post-2006 win rate under Auer is in line with its Chevron win rate.
A second descriptive result of this study is to demonstrate the breadth of administrative processes associated with Auer deference. For example, there are nearly as many interpretations subject to Auer review resulting from processes carrying the force and effect of law as there are that do not do so.
The final important result of this study is to show that reforming Auer deference would not impose an administrative burden on agencies or the courts, as is argued by defenders of the doctrine’s status quo. Under conservative assumptions, implementing an Auer “Step Zero” would lead to an estimated difference in the federal government's win rate of a single interpretation per U.S. Court of Appeals every eight years across sixty-six administrative agencies.