Last week my co-blogger Jeff Pojanowski and I participated in a Federalist Society teleforum (moderated by Adam White) on the Supreme Court’s recent decision in Perez v. Mortgage Bankers Association. In Mortgage Bankers, the Court held in a unanimous decision that a federal agency is not required to use notice-and-comment rulemaking to revise a prior interpretation of its own regulation—reversing the D.C. Circuit’s Paralyzed Veterans doctrine that required such additional process.
We focused the teleforum, however, on the three separate opinions by Justices Scalia, Thomas, and Alito—which all suggested a willingness to reconsider the Court’s Auer/Seminole Rock deference doctrine. This doctrine instructs courts to defer to an agency’s interpretation of its own regulation unless the interpretation is plainly erroneous. We also discussed, among other things, whether the Court should reconsider Chevron deference as well as whether Congress could legislate different deference standards in particular areas. If you’re interested, you can download the teleforum as a podcast here.
I have received a number of inquiries for the links/citations to certain scholarship I discussed during the call, so I thought I’d provide those here:
- Auer in the Lower Courts. Cynthia Barmore has a great piece forthcoming in the Ohio State Law Journal, entitled Auer in Action: Deference After Talk America.
This piece does not appear to be publicly available yet, but I will see if she will be posting it on SSRN soon.[UPDATE: A draft of the paper is now available on SSRN here.] In this study, Barmore examines how federal courts of appeals have applied Auer deference since 2011, concluding that circuit “courts already have and use the necessary tools to reject unreasonable agency interpretations, while overruling Auer would bring substantial costs in lost predictability and reduced political accountability.”
- Congressional Modification. With respect to congressional modification of administrative law deference doctrines, Kent Barnett’s work is terrific. He has a short symposium contribution (availablehere) in the Fordham Law Review that analyses congressional codification of Skidmore deference—as opposed to Chevron deference—in Dodd-Frank with respect to OCC preemption decisions. His longer treatment of “Chevmore Codification” is forthcoming in the NYU Law Review and available in draft form here.
- Deference Doctrines and Agency Statutory Interpretation. During the discussion I also referenced my empirical study on agency rule drafters for two distinct points.
stFirst, as to whether deference doctrines actually matter on the ground, I explained that looking at whether courts decide cases differently when applying different deference doctrines only captures a part of deference doctrines’ impact. We should also look at whether federal agencies interpret statutes differently depending on which deference doctrine the agencies believe will apply. My 195-question survey of 128 rule drafters at seven executive departments and two independent agencies suggests that deference doctrines do matter. I focus on that particular line of questions in my contribution to the Fordham Law Review symposium in an essay entitled Chevron Inside the Regulatory State: An Empirical Assessment (available here). The full findings are presented in an article entitled Inside Agency Statutory Interpretation, which is forthcoming this summer in the Stanford Law Review and available in draft form here.
The second point is whether Auer deference affects agency statutory interpretation. I’ve blogged about the findings from my empirical study on Auer deference here. The basic takeaway is that two in five agency rule drafters surveyed indicated that they use Auer deference when drafting rules, though unfortunately I didn’t ask any follow-up questions about how they use Auer in drafting—i.e., whether Auer, as Justice Scalia suggests, encourages agencies to promulgate ambiguous regulations via notice-and-comment rulemaking so that they can then interpret differently via less-rigorous procedures. But the fact that two in five drafters surveyed indicated that they even think about Auer is noteworthy (and potentially troubling).