An Empirical Defense of Auer Step Zero

Abstract

This Article provides empirical answers to several important questions in the ongoing administrative law debate over the Auer doctrine — i.e., controlling judicial deference to an agency’s interpretation of its own ambiguous regulations. The study is based on an original dataset of variables attendant to 1,120 federal agency interpretations that were reviewed by U.S. Courts of Appeals across 1,047 published opinions from 1993 to 2013, including all federal circuit court decisions that invoked Auer deference during that period. In order to provide for a comparative analysis of deference doctrines, simple random sampling was employed to create population-level data of U.S. Courts of Appeals opinions from 1993 to 2013 that invoked the other two primary deference principles in administrative law: controlling Chevron deference to an agency’s reasonable interpretation of ambiguity in its own enabling statutes and non-controlling Skidmore respect. In addition to identifying whether the government’s textual construction survived judicial review, each interpretation was categorized as being the result of one of twelve possible administrative processes: 1) appellate litigation positions; 2) informal adjudications; 3) non-legislative rules; 4) non-textual interpretations; 5) regulatory preambles; 6) formal rules; 7) notice and comment rules; 8) litigation positions before administrative adjudications; 9) non-precedential adjudications; 10) precedential adjudications; 11) hybrid orders; and 12) party briefs. The study, which is the largest ever comparative analysis of deference regimes in the U.S. Courts of Appeals, reaches three significant conclusions. First, the data indicate that Auer deference has narrowed in U.S. Courts of Appeals over the last decade, in the wake of a number of Supreme Court opinions that either limited or were critical of the doctrine. Second, U.S. Courts of Appeals give Auer deference to interpretations falling across the continuum of administrative procedure in a surprisingly balanced manner: Over the twenty year period subject to this study, federal circuit courts employed the Auer framework to review more interpretations resulting from formal administrative processes that carry the force and effect of law than they applied the doctrine to interpretations resulting from informal administrative processes. Finally, the data allow for a simple modeling of the projected administrative burden of reforming Auer deference, the results of which belie the commonly-held belief that disrupting the doctrine would lead to chaos in regulatory agencies and federal courts.

Keywords: Auer, deference, Chevron, Skidmore, administrative process, administrative procedures, Administrative Procedure Act