A Status Update on Criticisms of Auer and Chevron Deference
Back in April the Georgetown Center for the Constitution and the Institute for Justice organized a terrific conference entitled Challenging Administrative Power. The Georgetown Journal of Law and Public Policy generously agreed to publish the papers presented at the conference, and that conference issue is forthcoming early next year.
For my short conference contribution, I decided to pen a literature review of sorts of the recent arguments that have been raised in the academy and from the bench for eliminating — or at least narrowing — Auer (judicial deference to agency regulatory interpretations) and Chevron (judicial deference to agency statutory interpretation). I’ve posted a draft of the essay on SSRN here. In this short essay I’ve tried to capture every argument that has been made to date, so if I’ve missed one please let me know. There is still plenty of time to revise.
Due to space constraints, I did not attempt to articulate the various counter-arguments, and I also tried very hard to resist the temptation to weigh in. For what it’s worth, I think the case for eliminating (or at least substantially further narrowing) Auer deference is quite strong. As I have written elsewhere, I support calls like those made in the Regulatory Accountability Act to at least replace Auer deference with Skidmore deference. I also have advocated for proceduralizing Auer with constraints similar to what Mead does for Chevron.
As for Chevron deference, I am concerned about Chevron‘s growing reach in the modern administrative state, especially in an era when Congress does not regularly legislate to revisit agencies’ governing statutes and to provide further instructions to agencies in light of changed circumstances and agency regulatory activity. But having reviewed the theoretical arguments advanced to date to eliminate Chevron deference (including my own contribution), it seems like more work needs to be done to advance a compelling case for Chevron‘s demise. (And even if Chevron were eliminated, Kristin Hickman and Nick Bednar raise some serious doubts about what happens next.) As I have written elsewhere, I do think it’s quite realistic that we see a substantial narrowing of Chevron‘s domain along the lines that Chief Justice Roberts suggested in his dissent in City of Arlington v. FCC and his opinion for the Court in King v. Burwell.
At any rate, I’d love any comments folks may have on my draft essay, and I look forward to seeing how the debates on both deference doctrines continue to develop in coming years. The rest of the papers from the conference are definitely worth a read, and at least the following are available in draft form on SSRN:
Evan Bernick, Is Judicial Deference to Agency Fact-Finding Unlawful?
Emily Bremer, Designing the Decider
Jeff Pojanowski, Revisiting Seminole Rock
Ilan Wurman, As-Applied Nondelegation (Texas Law Review forthcoming)