The Chevronization of Auer

103 Minn. L. Rev. Headnotes 103 (2019)

11 Pages Posted: 7 Apr 2019

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Mark Thomson

Crowell & Moring LLP

Date Written: February 26, 2019

Abstract

The Supreme Court is poised in Kisor v. Wilkie to reconsider the standard of review known as Auer deference, whereby courts must defer to an agency’s reasonable interpretation of its own regulation. Auer’s defenders have long argued that the standard advances important practical goals, such as simplifying the judicial task and fostering consistency and predictability in the administrative process. During the last two decades, though, courts have engrafted an increasingly complex array of qualifications and exceptions onto Auer’s basic framework. This essay argues that those qualifications and exceptions have seriously undermined the practical rationales that are sometimes cited to support Auer deference, much as the development of a similar set of qualifications and exceptions has diminished the practical benefits of Auer’s better-known cousin, Chevron deference.

Keywords: Auer, Kisor, judicial Review, judicial Deference, Chevron

JEL Classification: K10, K20, K23, K30, K39

Suggested Citation

Hickman, Kristin E. and Thomson, Mark, The Chevronization of Auer (February 26, 2019). 103 Minn. L. Rev. Headnotes 103 (2019). Available at SSRN: https://ssrn.com/abstract=3342467

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

Mark Thomson

Crowell & Moring LLP

United States

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