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 […]
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 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 […]
Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version […]
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 […]
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 […]
Seminole Rock (or Auer) deference prompts many disagreements. Everyone agrees, however, that Seminole Rock has captured the attention of scholars, policymakers, and the judiciary. That is why we at Notice & Comment have decided that the time has come to collect thoughts regarding different aspects of Seminole Rock. Indeed, over the next two weeks, we […]
Steeped in World War II and with inflation growing, the United States sought to avoid repeating the financial mistakes of the first World War and turned for one of the few times in its history to price controls. On the heels of the passage of the Emergency Price Control Act, the Office of Price Administration […]
In the summer of 1942, Professor Henry Hart, then ten years into his career as a law professor, temporarily left the Harvard Law faculty to become an associate general counsel at the Office of Price Administration, an agency responsible for setting prices throughout the World War II-economy. Just under three years later, Hart argued the […]