January 14, 2019

Supreme Court Likely to End Judicial Deference to Agency Rule Interpretations

Holland & Knight Regulatory Litigation Blog
Steven D. Gordon

Two of the pillars of modern administrative law are the doctrines of judicial deference to agency interpretations of laws and rules that the agencies administer. These doctrines take their names from the Supreme Court decisions that articulated them. The doctrine of Chevron deference provides that courts will defer to a reasonable agency interpretation of an ambiguous law that the agency is tasked by Congress to administer.1 The doctrine of Auer deference provides that courts will defer to an agency's construction of its own regulations.2

Both of these doctrines have been criticized by judges and scholars on the grounds that they violate the separation of powers and cede judicial authority to the "administrative state." In December 2018, these criticisms took on more significance when the Supreme Court agreed to consider whether it should overrule the doctrine of Auer deference.3

The petitioner made a series of arguments about why the court should overrule the Auer doctrine:

  1. The Administrative Procedure Act (APA) empowers agencies to promulgate regulations that have the force of law, but generally requires that agencies do so through the public-notice-and-comment rulemaking procedure. "Auer 'encourag[es] agencies to write ambiguous regulations and interpret them later,' which 'defeats the purpose of delegation,' 'undermines the rule of law,' and ultimately allows agencies to circumvent the notice-and-comment rulemaking process." It encourages agencies to promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby frustrating the notice and predictability purposes of rulemaking.
  2. Auer represents a transfer of judicial power to the Executive Branch, which raises serious separation-of-powers concerns. It effectively delegates to an agency the judiciary's authority to interpret legal texts, i.e. regulations that have the force of law. There is no sound reason for this transfer. Although agencies may be better equipped than the courts to make policy decisions, an agency is no better equipped to read legal texts.
  3. Auer deference contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation. It is dangerous to eliminate the separation between the entity that creates the law and the one that interprets it.

Significantly, while the government opposed the Supreme Court taking up this case, it did not argue that the Auer doctrine is sound and should be maintained. Instead, it argued that the case before the court was not the right vehicle for reconsidering the doctrine.

Four current justices have already expressed doubts about the wisdom of Auer: the Chief Justice and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justice Brett Kavanaugh has not addressed the propriety of Auer deference, but his writings indicate he would share their doubts. Thus, the Supreme Court's decision to grant review strongly suggests that the court is prepared to overrule the doctrine, or at least to restrict it significantly. Furthermore, if the court overturns Auer on separation of powers grounds, then it becomes likely that Chevron will suffer the same fate. That would revolutionize administrative law after more than a generation under the regime of Chevron deference.


1 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

2 Auer v. Robbins, 519 U.S. 452 (1997).

3 Kisor v. Wilkie, --- S.Ct. ----, 2018 WL 6439837 (U.S. Dec. 10, 2018) (No. 18-15).

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