Written by Jerry To (LLB II)
Artwork by Justin Lai (LLB III)
When Justice Stevens, writing for the majority in Chevron U. S. A Inc. v Natural Resources Defence Council, 467 U.S. 837 (1984), laid down the principles of what later became known as Chevron deference, he likely did not consider that the Court was doing anything remarkable. However, contrary to that assumption, the Chevron decision has since become a bedrock of American jurisprudence. In addition, there exists another less well-known, yet equally significant doctrine, that compels courts to give the federal agency the highest deference when interpreting its own regulations—this is the Auer deference. Together, the Chevron and Auer decisions have formed the bedrock of American administrative law: where possible, courts should defer to agency interpretations of the law, unless such an interpretation is patently wrong.
In recent times, the universal acceptance of these deferential doctrines, particularly Auer, have gradually became a controversial topic of scholarly debate, with opponents voicing their disapproval on both grounds that it violates the separation of powers and represents an inappropriate reluctance of the judiciary’s constitutional role. The renewed interest in Auer, especially amongst the conservative Justices, recently culminated in the decision of Kisor v. Wilkie, 588 U.S. (2019) (“Kisor”), where a 5:4 majority reaffirmed Auer but severely restricted its scope to the point of, in the words of Justice Gorsuch, “[being] maimed and zombified”. Although Auer has managed to survive for the time being, the recent confirmation of Justice Amy Coney Barrett may well have sounded the alarm signalling the end of Auer deference.
Auer Deference: A Brief History
The origins of Auer deference came from the unanimous decision of Auer v Robbins, 519 U.S. 452 (1997), where the Supreme Court held that courts will defer to an agency’s interpretation of its own regulations unless such an interpretation is “plainly erroneous or inconsistent with the regulation”—this doctrine traces back to the earlier Supreme Court case of Bowles v. Seminole Rock & Sand Co., 325 U.S. 452 (1945). Fundamentally, Auer was merely an application of Chevron in the context of agency regulations rather than federal statutes. This much was conceded by Scalia himself in his dissent for the much later case of Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013) (‘Decker’). However, because Auer deference applies only to an agency’s interpretation of their own regulations, the need for consideration of the first limb of the test in Chevron—namely if Congress has expressed intent in the statute—is obviated since there is no congressional involvement in agencies crafting their own statues. Hence, instead of the two-step test in Chevron, Auerdeference is even more straightforward in that the only condition for deference is that the interpretation by the agency be “permissible”, even if the Court disagrees with it.
The shift away from agency deference: Scalia’s U-turn
Perhaps the most remarkable evolution on the issue of deference in administrative law was that of Justice Scalia. As well as being the author of the Auer decision himself, Scalia was also initially a very strong advocate of Chevron deference. In a 1990 article for the Duke Law Review, he supported the general principle of judicial deference to administrative interpretations of legal rules on the basis that it was a bright-line rule which left little to no room for varying interpretation. Scalia also supported their rigorous, rule-like methodologies (referring to Chevron’s two-step test and Auer’s one-step test), which he vastly preferred over the multifactorial, activism-prone approach favoured by his colleagues on the Supreme Court. Additionally, he valued the importance of other auxiliary benefits that judicial deference would bring to the system, especially on both grounds that it would make the process of judicial review much easier, and that the higher degree of expertise that agencies possess would render them more appropriate actors to expound on these matters.
However, Scalia gradually became more sceptical of the whole idea of agency deference altogether, particularly Auer. He famously remarked to his friend and colleague, Justice Thomas, that Auer was “one of the worst opinions in the history of this country”. In Decker, Justice Scalia, with characteristic pugnacity, famously decried “Enough is enough” and called for a total repudiation of Auer. He criticized Auer for violating the fundamental principle of the separation of powers because it places the power to create, enforce, and interpret the law into one single entity. Scalia argued that due to Auer, “…the power to prescribe is augmented by the power to interpret”. Consequentially, agencies have a perverse incentive to enact vague rules so as to allow potential retroactive interpretations that are advantageous to them in future proceedings, since courts would have to yield to the agency’s interpretation. These objections aren’t novel; they were first advanced by Professor John Manning (now Dean) of Harvard Law School in his seminal 1996 article, but it was not until Scalia’s dissent that this matter received significant attention which continued to gain traction beyond his tenure on the Court. Indeed, Justice Neil Gorsuch—Scalia’s replacement—is another stalwart opponent of Auer deference, and other conservative Justices on the Court have been increasingly vocal in their opposition to the doctrine.
The decision in Kisor
The most recent development in the Auer saga was the 2019 case of Kisor v. Wilkie, 588 U.S. (2019), where a slim 5:4 majority decided not to overrule Auer. The majority opinion, authored by Justice Kagan, sought to justify Auer deference by imputing a presumption that Congress intends to give agencies wide latitude to “resolve regulatory ambiguities”. The majority further held that because of the principle of stare decisis and the fact that there is some 75-odd years of Supreme Court precedent tied up in Auer, there would need to be some “special justification” to reverse it—this was found not be present. Indeed, Chief Justice Roberts, the crucial fifth vote in the majority, did so purely based on these grounds. He did not join the other four Justices in their exposition of the legal justification on Auer itself or on their newly established framework, both of which severely weakened the precedential value of the main aspects of the majority opinion because it only commanded a plurality of the Court. Nonetheless, regardless of the ultimate judgement, the majority greatly reduced its scope through fashioning a new framework which stipulated a multitude of restrictions to its application.
Conversely, the dissenting Justices completely disagreed with the framework fashioned by the majority in Kisor. Instead, they advocated for an outright overrule of the doctrine for reasons similar to those by Justice Scalia—as aforementioned. The senior dissent, written by Justice Gorsuch, did advance, inter alia, two further significant objections to Auerdeference, both on constitutional grounds. The first is that Auer deference imposes a bias towards litigants in cases against the government that constitutes a violation of due process as prescribed by the Fifth Amendment of the US Constitution. The second is that the continued abdication of judicial power by courts in applying Auer deference constitutes a violation of Article III of the Constitution, which provides that the “judicial power of the United States is vested exclusively in this Court and the lower federal courts” (emphasis added). By refraining from exercising independent judgment, the Courts are no longer, in the famous words of Chief Justice John Marshall in Marbury v Madison, 5 U.S. 137 (1803), “say[ing] what the law is”, but rather letting the political branches do so.
What’s Next?
In his dissent, Justice Gorsuch remarked that Kisor was more a “stay of execution rather than a pardon” and warned that it would not be “this Court’s last word on Auer”. Justice Gorsuch, along with Justice Thomas—another anchor of the Court’s conservative wing—have recently dissented from the Court’s reluctance to reconsider the doctrine via its refusal to grant certiorari in the case of Garco Construction, Inc. v. Speer, the most recent challenge to Auer thus far. However, despite this temporary sense of certainty, the Auer saga is likely far from finished. With the recent confirmation of Justice Amy Coney Barrett to the Supreme Court, another stalwart conservative weary of executive encroachments on the American system in the mould of her mentor Justice Scalia himself, Auer’s demise now seems inevitable. If this occurs, it will mark the culmination of more than 30 years’ worth of debate on this issue and will usher in a revolutionary new era of American administrative law.