End the Failed Auer Experiment Now

Abstract

This Essay proceeds in three parts, discussing why Auer and Seminole Rock were ill-conceived as a matter of constitutional law, statutory law, and policy. First, Auer creates serious separation of powers problems by vesting agencies de facto with the judicial power in a manner contrary to the letter and spirit of Article III. Second, Auer ignores the unambiguous mandate of the Administrative Procedure Act (APA), which instructs courts themselves to “determine the meaning...of the terms of an agency action.” Third, Auer creates perverse incentives for administrative agencies to “promulgate mush” by tipping the regulatory playing field in this way, allowing them to clarify ambiguous regulations via interpretive rules or informal guidance not subject to the requirements of the APA, or even via court filings submitted after litigation has already commenced. Thankfully, members of the Court and of Congress have heeded Justice Scalia’s call that “[e]nough is enough,” and Auer appears to be on the brink of abrogation. This misbegotten judicial doctrine should be swept into the dustbin of bad precedent.

Keywords: Seminole Rock, Auer, deference, Article III, judicial review, APA, Administrative Procedure Act, judicial power, administrative state, regulatory reform

JEL Classification: K23