The Chevronization of Auer
103 Minn. L. Rev. Headnotes 103 (2019)
11 Pages Posted: 7 Apr 2019
Date Written: February 26, 2019
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: Suggested Citation