The Self-Delegation False Alarm: Analyzing Auer Deference's Effect on Agency Rules
84 Pages Posted: 21 Feb 2018 Last revised: 2 Feb 2019
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delegation thesis has never been tested.
This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My linguistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence.
These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the institutional pressures and cognitive horizons that cause agencies to pursue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empirical reality before unsettling settled law.
Keywords: Administrative law, empirical legal studies, agency delegation, discretion, deference, separation of powers, Auer v. Robbins, bounded rationality, perverse incentives, hard look review, content analysis, rulemaking, interpretation, regulations
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