As I noted back in July, the Supreme Court appeared to have a decent vehicle to consider whether to overrule Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” Yesterday the Court granted that cert petition in Kisor v. Wilkie to decide whether to overrule Auer deference.
Here at Notice and Comment two years ago, my co-blogger Aaron Nielson organized a terrific online symposium on the future of Auer. That symposium is definitely worth revisiting in light of the Kisor cert grant, and my guess is that a number of my co-bloggers will be weighing in here as well. We’re also happy to publish smart guest posts on the subject, so reach out to me if you are interested.
In light of the Court’s decision to hear Kisor, I thought I’d do a special Auer edition of my AdLaw Bridge Series to highlight some of excellent scholarship that has been done recently on Auer deference. I’ll aim to highlight diverse perspectives — some empirical, some doctrinal, some in support of the doctrine, and some more skeptical of it.
First up is a fascinating new empirical study, forthcoming in the Columbia Law Review, by Daniel Walters. As those familiar with the debate know, one of the main arguments that has been raised against Auer is that it creates perverse incentives for federal agencies: the combination of rule-writing and rule-interpreting power in one body risks self-delegation through the promulgation of vague, flexible rules that can be (re-)interpreted at a later time with little scrutiny from the courts.
Walters’s empirical work should give Auer skeptics some pause about the incentives argument. He summarizes the key findings from study in an essay published on the Regulatory Review earlier today:
Applying the multiple measures to over 1,200 economically significant rules from 1982 to 2016, I find that agencies wrote no more vaguely after Auer was decided in 1997. I likewise find no evidence that agencies’ win rates under Auer or their exposure to Auer-related litigation in federal court had any impact on the clarity and specificity of their rules. In fact, if anything, the evidence suggests that agencies on the whole have been writing with greater clarity since Auer’s profile has grown.
These findings only serve to reinforce what we already know about how agencies operate. The critique of Auer vastly oversimplifies the incentive structures that agencies face and overlooks countless pressures pushing agencies toward clarity in their rules.
And here is the abstract for the full paper:
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has become increasingly influential. Yet, surprisingly, this self-delegation thesis has never been tested.
This Article scrutinizes the thesis empirically using an original and extensive dataset of the texts of federal rules from 1982–2016. My linguistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence.
These findings run against common wisdom, but they should not be at all surprising. The self-delegation incentives thesis depends on a model of agency behavior that is inconsistent with what is known about the institutional pressures and cognitive horizons that cause agencies to pursue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empirical reality before unsettling settled law.
Go give the draft of the full paper a read here.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.