Today, in his concurrence in the denial of rehearing en banc in Bible v. United States Aid Funds, Inc.(7th Circuit), Judge Easterbrook serves up an excellent vehicle (at least in his opinion) for the Supreme Court to reconsider Auer deference in administrative law. (HT Will Baude)
As I’ve blogged about here, a number of Justices last Term in Mortgage Bankers indicated a willingness to reconsider Auer deference. This doctrine instructs courts to defer to an agency’s interpretation of its own regulation unless the interpretation is plainly erroneous. I have also blogged here about the findings from my empirical study inside agency interpretation, in which two in five (39%) agency rule drafters surveyed said they think about Auer deference when drafting regulations.
It will be interesting to see whether the Court takes up the issue this Term. If the Court is interested (as I think at least four of the Justice are), Judge Easterbook believes he’s found a great vehicle. Here’s the key part of his concurrence:
The petition for rehearing en banc asks the court to consider whether Auer supports the Secretary’s current position, when applied to conduct that predates the Secretary’s amicus brief. That is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015), three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking. See also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).
I do not think that it would be a prudent use of this court’s resources to have all nine judges consider howAuer applies to rehabilitation agreements, when Auer may not be long for this world. The positions taken by the three members of the panel show that this is one of those situations in which the precise nature of deference (if any) to an agency’s views may well control the outcome.