Notice & Comment

An Empirical Analysis of Auer Deference in the Courts of Appeals, by Cynthia Barmore

Most commentary about Auer deference has been theoretical and dramatic. Justice Scalia, for example, both the author of Auer v. Robbins and one of its early critics, decried Auer as an “evil” that allows “tyrannical laws” to be executed in a “tyrannical manner.” In Auer in Action: Deference After Talk America, I argue that this rhetoric is out of step with reality, based on how the federal courts of appeals have used Auer deference since Justice Scalia first questioned the doctrine in his Talk America concurrence.

My article offers a simple message: Auer isn’t all that special. And it doesn’t threaten the Republic.

First, the rate at which circuit courts grant Auer deference has fallen steadily from 82.3% in 2011 and 2012 before Christopher to 70.6% since Talk America. Auer is now comparable to the deference agencies receive under Chevron; it is not a form of super-deference that insulates agency action from review. That is true regardless of a judge’s political ideology, and deference rates have fallen over time among judges appointed by both Republican and Democratic presidents.

Second, it is extremely rare for a court to indicate that Auer requires it to adopt an interpretation it would otherwise reject. Instead, most courts use Auer as a shortcut to avoid lengthy regulatory analysis, or to conclude the agency’s position is a reasonable exercise of discretion to decide an unanswered policy question. Moreover, 20% of those that grant Auer deference go a step further and announce that the agency’s reading is the best one.

This finding undermines a central concern for Auer’s critics, namely that the doctrine compels courts to accept agency interpretations that border on implausible. In his Mortgage Bankers concurrence, Justice Scalia again warned that deference largely “compels the reviewing court to ‘decide’ that the text means what the agency says.” Justice Thomas likewise criticized Auer in large part because he considered it to be a transfer of judicial power to executive agencies. Auer deference, he argued, “precludes judges from independently determining” the meaning of agency regulations.

There is some intuitive force behind their arguments. Agencies could respond to Auer by writing “substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpreting rules unchecked by notice and comment.” That would maximize their power during litigation under a system that grants deference to agency interpretations of ambiguous, but not unambiguous, regulations. And Justice Thomas is right, too, that courts could give agency interpretations “controlling weight” without exercising independent judgment.

But that is not the norm. Auer gives agencies a central voice in litigation, but courts still take Auer’s limitations seriously. They use its traditional boundaries—particularly on interpretations that are plainly erroneous, inconsistent, or not the product of the agency’s fair and considered judgment—to evaluate the reasonableness of an agency’s views in ways that often resemble Chevron deference in practice. In short, courts both have and use a variety of tools to reject improper agency interpretations, just as they should under an appropriate level of judicial review.

Finally, the data reveal the details of when courts defer. Historically conservative circuits, including the Fifth, Eighth, and Eleventh, grant Auer deference most often, while the Ninth and D.C. Circuits are markedly more hesitant. Some agencies invoke Auer more often than others, particularly the Department of Labor and the Bureau of Immigration Affairs, but those agencies also receive it at lower rates than others. An agency’s interpretation prevails more often when the agency is party to the litigation than when it is not, but courts regularly refuse to defer if an agency’s interpretation simply appears in its party brief. Instead, courts defer most often when the interpretation appears in the agency’s order or public issuance.

It is important to ground the debate over Auer in what the doctrine is, not just what it might be. The data show that the Court has already accomplished a significant amount with its recent Auer decisions, and common concerns about Auer have not materialized in practice. Courts today can and do reject inappropriate agency interpretations within Auer’s existing framework. And what little research there is suggests at least some agency officials view their interests as better served by writing clear rules for regulated entities to follow, rather than by writing vague rules to be manipulated later in litigation. In sum, Auer already has meaningful limits. Overruling Auer would accomplish little beyond removing a useful tool that facilitates judicial review, increases the predictability of regulatory action, and maintains political accountability in agency decisionmaking.

Cynthia Barmore received her J.D. from Stanford Law School in 2015.


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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