Defying Auer Deference

Abstract

On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. Circuit’s decision in Paralyzed Veterans of America v. D.C. Arena L.P. The rule created in Paralyzed Veterans required agencies to “use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted.” The Paralyzed Veterans rule addressed policy concerns that agencies use interpretive rules to evade APA notice-and-comment procedures. According to Professor Sasha Volokh, the overturning of Paralyzed Veterans is uncontroversial and founded in sound understandings of statutory interpretation. The opinions of Justices Alito, Thomas, and Scalia, however, suggest that the conservative wing of the Supreme Court may be seeking to overturn another longstanding rule: Auer deference (a.k.a. Seminole Rock deference).

Keywords: Auer, Deference, Chevron, Perez v. Mortgage Bankers, Gloucester, Thomas, Scalia