Notice & Comment

Auer as Administrative Common Law, by Gillian Metzger

To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, John Manning), violates “fundamental principles of separation of powers” by “permit[ing] the person who promulgates a law to interpret it as well.” On the other, Auer deference is also seen as uniquely at odds with the Administrative Procedure Act. Thus, Scalia criticized Auer not simply for deviating from the APA’s scope of judicial review provision but also for offering agencies a route to evading the APA’s notice-and-comment requirements by promulgating vague regulations that they can broadly interpret.

In fact, however, there is nothing so special about Auer. To begin with, as Cass Sunstein and Adrian Vermeule contend, the constitutional and statutory attacks on Auer are hard to cabin. Administrative agencies regularly issue regulations, enforce those regulations, and adjudicate controversies involving those regulations. If Auer runs afoul of a constitutional “same hands” prohibition by allowing an agency to specify the meaning of regulations it promulgates, then this combination of functions— a core characteristic of administrative agencies — seems unconstitutional in spades. Auer and Chevron are particularly intertwined, with both provoking similar claims of APA incompatibility and both resting on recognition of the impossibility of separating interpretation and policymaking. Moreover, as Perez v. Mortgage Bankers Association emphasized, Auer exists alongside other requirements, in particular the basic demand of reasoned decisionmaking, that ensure some judicial check on agency regulatory interpretations.

Auer is also typical of administrative law in another way: the debate over Auer is a prime example of administrative law’s common law character. As I have argued elsewhere, much of administrative law rests on judicial conceptions of appropriate institutional roles as well as pragmatic and normative concerns. These concerns are constitutionally and statutorily rooted, but rarely does the Constitution or the APA require a particular doctrinal response. Instead, judges draw on these background constitutional, statutory, and pragmatic concerns to develop administrative law incrementally, with attention to changing institutional dynamics and the comparative competencies of agencies and courts.

Such is the case with Auer. Here, too, the constitutional concerns are indeterminate and countervailing. The fact that the Court has repeatedly accepted intermixing of functions make it hard to see Auer’s combination of regulation promulgation and interpretation as clearly unconstitutional. In addition Auer may yield constitutional benefits. Aaron Nielson has pointed out how Auer may advance due process fair notice and rule of law norms, given the risk that agencies otherwise might choose to issue their regulatory interpretations through ad hoc administrative adjudication. Further, by encouraging an agency to issue rules clarifying how its regulations should be read, Auer also may serve to support top-down oversight and control of agency personnel, thereby reinforcing constitutional supervisory structures. Auer also serves constitutional values of effective and accountable government, insofar as it gives agencies needed ability to tailor regulations to emergent problems in an informed and responsive manner. This is not to deny the separation of powers concern raised by concentrating powers in administrative agencies, but rather to underscore that there are other constitutional concerns in play. Administrative common law is the prime mechanism by which courts balance such competing constitutional concerns.

Similarly, Auer is not plainly at odds with the APA. Both Chevron and Auer deference can be viewed as adhering to the APA’s instructions for judicial review: deference, on this view, follows from courts concluding the statutes at issue grant policymaking and gapfilling authority to the agency. Moreover, given that the APA expressly exempts agency interpretations from notice and comment constraints, it seems unfair to presumptively deem agency exercise of this exemption to be procedural evasion. And discussion of whether Auer creates incentives in tension with the APA is emblematic of the doctrine’s common law basis. Such pragmatic consideration of existing doctrine and proposed alternatives is a central feature of administrative common law.

Recognizing Auer’s common law character helps frame the debate over its future. Courts should not pretend that overturning Auer is constitutionally or statutorily compelled. It’s not. Instead, courts need to frankly acknowledge the wide-ranging normative and pragmatic concerns in play. They need to engage with empirical evidence on Auer’s actual impact on notice-and-rulemaking and not rely simply on judicial intuitions. And they need to recognize that Auer cannot be singled out for revision without calling modern administrative law more broadly into question. Indeed, courts should consider whether, if agencies are turning to Auer to avoid rulemaking constraints, the fault may lie more in other administrative common law doctrines—such as judicial elaboration of the APA’s notice and comment requirements—than with Auer deference itself.

Gillian Metzger is the Stanley H. Fuld Professor of Law at Columbia Law School, and writes and teaches in the areas of constitutional law, administrative law, and federal courts.


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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