Auer in Action: Deference After Talk America

Abstract

For decades, judges and commentators took for granted that courts should defer to an agency’s interpretation of its own ambiguous regulation, unless that interpretation is plainly erroneous or inconsistent with the regulation. In 2011, however, Justice Scalia announced his growing discontent with Auer deference in Talk America, and the Court has since rolled back Auer’s scope in recent decisions. While Auer’s judicial and academic critics have explored the theoretical dangers inherent in the doctrine, they have paid little attention to how courts apply Auer in practice. This Article adds to the literature on Auer deference by providing the first in-depth analysis of how federal courts of appeals have reacted to the Court’s recent Auer decisions. In the end, the data suggest that there is little to gain (and much to lose) by overruling Auer.

The results, drawn from an original data set of all 190 Auer cases decided by courts of appeals since 2011, reveal Auer is no longer the extremely deferential doctrine it was once considered to be. The rate at which courts grant Auer deference fell from 2011 to 2014 among both Republican and Democratic judges. Overall, deference is most common in traditionally conservative courts of appeals, when the agency is party to the litigation, and when the agency’s interpretation appears in an agency order or public issuance. The results also reveal why courts do — and do not — defer. When courts grant Auer deference, they rarely view the agency’s interpretation as unpersuasive, and when they withhold Auer deference, they typically rely on Auer’s historical boundaries. The data confirm that courts already have and use the necessary tools to reject unreasonable agency interpretations, while overruling Auer would bring substantial costs in lost predictability and reduced political accountability.

Keywords: Auer Deference, Seminole Rock Deference, Administrative Law