Notice & Comment

Empirical Answers to Outstanding Questions in the Ongoing Debate Over Auer, by William Yeatman

Many unresolved questions weigh heavily on the debate over Auer deference, including:

  • Is Auer deference “stronger” than Chevron deference?
  • How varied are the procedural formats associated with regulatory interpretations that are reviewed under Auer?
  • What would be the administrative burden of reforming Auer by adding a “Step Zero”?

In order to provide empirical answers to these pressing questions, I conducted a controlled comparison of deference principles as applied by U.S. Courts of Appeals over a twenty-year span.

To this end, I created an original dataset of variables attendant to 1,118 agency interpretations across 1,048 published 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, I 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 in administrative law: controlling Chevron deference to an agency’s interpretation of its own enabling statutes and non-controlling Skidmore respect. For each interpretation, I recorded identifying information and whether the government’s interpretation prevailed in court. Also, each interpretation was put into one of twelve categories of administrative procedure: (1) appellate litigation positions; (2) non-legislative rules; (3) informal adjudications; (4) non-textual interpretations; (5) formal rules; (6) preamble; (7) notice and comment rules; (8) litigation positions before administrative adjudications; (9) non-precedential adjudications; (10) precedential adjudications; (11) administrative orders; and (12) party briefs.

The results of the study provide the following answers to the aforementioned questions:

  • The data indicate that Auer deference has narrowed in U.S. Courts of Appeals over the last decade, in the wake of a number of Supreme Court opinions that were critical of the doctrine. Before 2006, when the Supreme Court first checked Auer, the government won 77 percent of the time when U.S. Courts of Appeals employed Auer, which is significantly greater than the government’s win rate under Chevron. From 2006 to 2013, the government’s win rate under Auer was 71 percent, which is on par with its win rate under Chevron. At any time scale, the government’s win rate when U.S. Courts of Appeals invoked Auer and Chevron was significantly greater than when they invoked Skidmore.
  • S. Courts of Appeals give Auer deference to interpretations falling across the continuum of administrative procedure in a surprisingly balanced manner. Overall, federal circuit courts applied Auer deference to virtually the same number of interpretations resulting from administrative processes that carry the force and effect of law as they applied the doctrine to processes that do not.
  • Under conservative assumptions, implementing an Auer Step Zero would lead to an estimated difference in the government’s win rate amounting to a single interpretation per U.S. Court of Appeals every eight years across 66 administrative agencies identified in the study. These results belie claims that disrupting the doctrine would lead to chaos in regulatory agencies and federal courts.

The study, The Simple Solution to Auer Problem, is available on SSRN. Comments are most welcome.

William Yeatman (curriculum vitae) is a senior fellow at the Competitive Enterprise Institute, a libertarian think tank in Washington, D.C., that focuses on the administrative state. During evenings, he pursues a J.D. at the Georgetown University Law Center.


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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