At the center of the challenge to Auer deference is the thesis that the deference prescribed in that case gives agencies an incentive to write regulations vaguely, so that they will subsequently be able to adopt interpretations of those regulations that have not undergone the rigors of the notice and comment process but will nevertheless […]
All G.G. wanted was to be like other high schoolers, and use the bathroom that corresponds with his gender identity. Yet this small request triggered a high-profile legal battle over the meaning and application of Title IX that may be well on its way to the U.S. Supreme Court. After losing in the U.S. Court […]
An August 13, 2016 New York Times article reports that “Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.” Putting to one side the detail that agencies authorized by Congress—not the President—promulgate regulations, the article looks behind the widespread public perception that “President Obama […]
Central bankers often insist that ideology, values, worldview, and—that much-hated term—politics play no role in influencing their decisions. This is a very useful dodge on their part. It’s a dodge because, as I have argued in my book The Power and Independence of the Federal Reserve, expertise is inevitably and appropriately ideological, the process that […]
Apologies for the delay in posting this month’s reading list. The last few weeks have been busy in filing briefs in a number of administrative law cases in addition to enjoying the blog’s Auer/Seminole Rock deference symposium and this amazing conference at Florida State on administrative law / environmental law without courts. But here is the […]
Although the D.C. Circuit issued two opinions this week, it really only addressed one question: What exactly is fair game for an employee to do during a labor dispute? And the answer? It can be hard to say—so ask the NLRB! Consider first Consolidated Communications, Inc. v. NLRB. Here, the Court (per Judge Millett, joined […]
Auer matters. It makes the difference between winning and losing on important issues that matter to real people—such as what bathroom a transgender student may use, what costs foreign employees must be reimbursed for, and the proper sentence for a convicted criminal. Consider these recent examples: 1. G. ex rel. Grimm v. Gloucester County School Board, […]
This Friday the Florida State University College of Law is hosting a terrific conference entitled Environmental Law Without Courts. The conference builds on the law school’s prior conference on environmental law without Congress. As the conference website explains, “[t]his conference will bring together prominent environmental and administrative law scholars from across the country, and explore […]
At the request of Senator Hatch and other lawmakers, the Government Accountability Office recently released a report on various IRS guidance procedures. The report’s title (“Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance”) gives away its conclusion — the Treasury and OMB have not carefully considered why the government creates […]
This article is not about the wisdom or lack thereof of Auer/Seminole Rock (“ASR”). Instead, it explores an aspect of ASR “on the ground.” Specifically, this article considers the considerable gaps between how the Supreme Court has framed the doctrine and how the United States Tax Court has applied (or not applied) it. Some of […]
Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies […]
Hear Auer deference, and you’re unlikely to think of criminal law. After all, Auer deference is a doctrine of administrative law, and administrative law has traditionally been viewed as separate from criminal law. And it’s true, Auer deference does not often come up in determining whether a substantive criminal violation has occurred. But Auer deference […]
If the Supreme Court abandons the deferential approach articulated in Auer v. Robbins, will agencies lose interpretive power over their own regulations? Not necessarily. Under Auer and various predecessor cases, an agency’s interpretation of its own regulation controls, unless that interpretation is plainly erroneous or inconsistent with the regulation. Courts do not always precisely explain […]
Yesterday we had three terrific posts on whether Auer deference actually makes a difference in the federal courts of appeals. In other words, do agencies win more when courts apply Auer deference (also known as Seminole Rock deference) to give an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the […]
Seminole Rock has a step one inquiry too—and, like Chevron’s step one, it depends on the court’s choice of interpretive method. Chevron’s step one asks whether the authorizing statute “directly” speaks “to the precise question at issue” in the sense of clearly prohibiting or requiring the agency’s position. The method of statutory interpretation that the […]