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The Unbearable Rightness of Auer

23 Pages Posted: 18 Jan 2016 Last revised: 22 May 2016

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Adrian Vermeule

Harvard Law School

Date Written: May 15, 2016

Abstract

For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct.  In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy." 

Suggested Citation

Sunstein, Cass R. and Vermeule, Adrian, The Unbearable Rightness of Auer (May 15, 2016). Forthcoming, University of Chicago Law Review; Harvard Public Law Working Paper No. 16-02. Available at SSRN: https://ssrn.com/abstract=2716737 or http://dx.doi.org/10.2139/ssrn.2716737

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
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617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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