Notice & Comment

After Auer?, by Jeffrey Pojanowski

I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. This led me to appreciate how Bowles v. Seminole Rock, which gave rise to what we now know as Auer deference, is plainly correct, given its circumstances and the era’s doctrinal backdrop and assumptions about interpretation. That conclusion further suggests, however, that doubts about Auer doctrine in its current form flow from is its expansion beyond that constraining context. To be more concrete, Seminole Rock looks like a sound application Skidmore deference that has been generalized and extended beyond the context in which it originally made sense. This conclusion, moreover, sheds light on what animates the current push against Auer deference and what a world without Auer might look like.

Let me explain. Before there was Seminole Rock/Auer deference, let alone Chevron deference, there was Skidmore v. Swift & Co. Handed down in 1944, the unanimous opinion addressed how much credence reviewing courts should give to administrative agencies’ legal interpretations. Skidmore tells us that the “weight of [the agency’s] judgment…will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Today, in the context of reviewing agencies’ interpretations of statutes, courts invoke Skidmore when the more deferential Chevron framework does not apply. One alternative to Auer deference is applying Skidmore to agency regulations as well. What would that look like? Seminole Rock may show us just that.

Seminole Rock, decided in 1945, concerned the proper interpretation of a 1942 price control regulation. The opinion stated that “the ultimate criterion” in deciding the case was “the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” The Court cited no authority for this bold proposition. But let’s think about Seminole Rock as a sub silentio application of Skidmore deference. Skidmore, which the Court handed down the previous year, was more an expression of conventional wisdom about judicial review than a path-breaking announcement of a new standard. The Skidmore framework and its assumptions were plainly in the air—and in the briefs. Thanks to Professor Aditya Bamzai’s digging, we now know that Henry Hart’s brief for the government in Seminole Rock explicitly relied on Skidmore.

When thinking of Seminole Rock as a Skidmore case, let’s also think about the context of interpretive theory at the time. Mainstream statutory interpretation in the mid-1940’s was far more intentionalist than today. Skidmore and Seminole Rock come way before textualism’s critique of the validity—or even the cogency—looking to the original intentions of an historical legal author. The cases also predate the consolidation at the Supreme Court of the Legal Process focus on a hypothetical reasonable legal author pursuing reasonable purposes reasonably. This is not to say everyone on the Court was an old fashioned intentionalist, but repair to historical intent was far more likely to be a first-order working assumption then than it is now.

With that in mind, consider how a run-of-the-mill intentionalist would approach Seminole Rock under Skidmore. Here we have the legal author offering a reading of its recent regulation. If the intent of the author is central, the agency’s account is certainly something that “has the power to persuade” under Skidmore. The account need not be decisive: an author’s hasty, poorly reasoned, inconsistent, or plainly countertextual claim about the meaning of its legal pronouncement would raise suspicions about the sincerity or reliability of the narrator. Those would also be the very kinds of flaws that, under Skidmore, would deprive the agency’s interpretation of its power to persuade. Nothing in the Seminole Rock 8-1 opinion suggests the Court saw any of these flaws in the agency’s reportage.

This understanding of Seminole Rock as an easy 1945 Skidmore case coheres with the era’s doctrinal framework and interpretive mood. Furthermore, it sheds further light on why, as Bamzai has discovered and explained in this symposium, Justice Murphy’s first draft of Seminole Rock found congressional intent irrelevant to the inquiry. The primary matter is the intent of the agency author, so long as it bears other indicia of credibility. Similarly, this reading of Seminole Rock resounds with Henry Hart’s briefing in the case for the government, which also focused on the intent of the author and cited Skidmore, but not the proto-Chevron 1941 decision Gray v. Powell. Finally, this reading helps explain why nobody at the time seemed to think Seminole Rock was a big deal. If Seminole Rock conferred extensive lawmaking authority to agencies in the way we think about it today, one would expect a fulsome dissent about separation of powers along the lines of Justice Jackson in Chenery II. (Justice Jackson, I might add, authored Skidmore.) Here, we only have Justice Roberts issuing a one-line dissent agreeing with the court of appeals that interpretation was implausible.

If you are sympathetic with old fashioned intentionalism and think of judicial review in terms of Skidmore, Seminole Rock is a run-of-the-mill 8-1 case. Things look quite different, however, if you pluck out and abstract Seminole Rock’s “plainly erroneous” verbiage beyond this context, such as interpretations the long antedate the regulation’s original promulgation. Furthermore, if you drop the Skidmore contextualism and Chevron-ize the doctrine by reading it as a strong, general rule of deference grounded in law-making (not law-reporting) authority, the doctrine looks even more radical. Finally, drop any faith in intentionalism, and the doctrine begins to look incomprehensible in the eyes of a 1940’s interpreter.

In short, the move from the Seminole Rock case to “Auer deference”—understanding Auer as a Chevron-like deference rule presupposing delegated authority to make policy in the gaps—creates an entirely different doctrine than envisioned in 1945. It is this retheorization, moreover, which raises the worries many have about Auer today. If an agency is using delegated legal authority when it interprets unclear regulations, some will worry about separation of powers, subdelegation, and the like. But if presumptive deference is grounded in authorial competence, that changes the game. The agency is reporting what preexisting law means, not making new law in the gaps it created.

Alasdair MacIntyre, in his controversial and magisterial book After Virtue, argued that moral argument today is incoherent and interminable because we use terms and concepts that were at home in an Aristotelian understanding of human nature and human goods that we can no longer accept or even comprehend. A parallel pattern may have unfolded with our deference doctrine, which was once rooted in an intellectual milieu less skeptical of intentionalism and less likely to understand legal uncertainty as a policy space. (Again, this is a generalization: not everyone in 1945 was an intentionalist, and legal realists had weakened many thinkers’ faith in legal craft. Similarly, there are some attempts today to revive intentionalism in general and to think about it more rigorously in the Auer context.) Auer deference, in this light, is a fragment from an earlier legal era detached from the original suppositions which made Seminole Rock unremarkable in the first place. Small wonder, then, that the Court’s abstraction and expansion of the doctrine in a different jurisprudential climate has proven controversial.

One takeaway from my Missouri symposium paper is that the press to abandon Chevron is motivated by a return to more classical legal cast of mind, one which less readily accepts administrative law’s dogma that resolving uncertain interpretive questions is a matter of policy choice as opposed to legal craft. The parallels play out here with respect to Auer deference as well. Professor Richard Ekins argues in the opening chapter of The Nature of Legislative Intent that, until the latter half of the 20th Century, intentionalist interpretation was the coin of the realm in Anglo-American jurisprudence. Little surprise, then, that a jurist more amenable to classical legal thought might be willing to defer to agency interpretations in limited circumstances of authorial reliability, while rejecting deference wholesale. After Auer, a return to Seminole Rock.

Jeffrey Pojanowski is a Professor of Law at Notre Dame Law School, where he teaches and writes in administrative law, jurisprudence, and legal interpretation. Prior to the legal academy, Professor Pojanowski practiced appellate and administrative law at the Washington, DC offices of Latham & Watkins LLP. He has also served as a law clerk to Supreme Court Justice Anthony M. Kennedy and then-Judge John G. Roberts, Jr. on the United States Court of Appeals for the D.C. Circuit. If you have not had enough of him, you can read his papers on SSRN or follow him on Twitter @pojanowski.

This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.

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