Yesterday we had three terrific posts on whether Auer deference actually makes a difference in the federal courts of appeals. In other words, do agencies win more when courts apply Auer deference (also known as Seminole Rock deference) to give an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the regulation”—as opposed to de novo review or under the less-deferential Skidmore standard.

That is certainly an important question. Based on my new coauthored empirical study Chevron in the Circuit Courts, my intuition is that, of course, Auer deference matters in the courts of appeals. But I am somewhat relieved to learn that agencies seem to win less under Auer deference than Chevron deference and that the agency-win rates under Auer appear to have dropped since Justice Scalia—Auer’s author—began criticizing the deference doctrine.

But what about Auer’s effects within the agency? This is an important empirical question in light of one of the twin pillars of Justice Scalia’s attack on Auer. In addition to arguing that Auer raises constitutional concerns by combining legislative and executive functions in one government actor—here, typically an unelected bureaucrat (with perhaps some presidential oversight)—he focused on the perverse agency incentives that Auer may produce. Justice Scalia detailed this agency incentives argument in Talk America:

Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive.* By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.

Several years ago I asked 128 rule drafters at seven executive departments and two independent agencies 195 questions about how they interpret statutes and draft regulations, including a number of questions about their awareness and use in drafting of the main administrative law deference doctrines. I reported the findings from that study in Inside Agency Statutory Interpretation. The following table from that article summarizes the results as to the deference doctrines:

As the figure illustrates, 94% of the rule drafters knew Chevron deference by name, followed by 81% for Skidmore, 61% for Mead, and 53% for Seminole Rock/Auer. With respect to the role of these doctrines in drafting decisions, the agency rule drafters’ reported use of these doctrines follows the same pattern, with varying levels of less reported use than familiarity: Chevron at 90%, Skidmore at 63%, Mead at 49%, and Seminole Rock/Auer at 39%. (I also asked about Curtiss-Wright deference—the superdeference for executive interpretations of statutes implicating foreign affairs and national security—but only 6% reported awareness and only 2% indicated use in drafting.)

So what can we make of the responses about Seminole Rock/Auer deference? It is a bit of a puzzle what impact Seminole Rock/Auer deference has on the two in five (39%) agency rule drafters who said they think about it when drafting regulations. One comment may shed some light: “Re: Seminole Rock/Auer, I personally would attempt to avoid issuing ambiguous regulations that we would then have to interpret.” In other words, the rule drafters who indicated Auer deference plays a role in drafting decisions may be saying they attempt to avoid inconsistent regulations.

Or perhaps because Auer is so deferential to an agency’s interpretation of its own regulation, the rule drafters may be saying they do not have to worry about being clear and precise, as they can always clarify and clean up in subsequent guidance. In other words, that two in five rule drafters confirmed that Auer deference plays a role in drafting may provide some support for Justice Scalia’s call to revisit the doctrine due to the odd incentives it may create for agency drafting: “the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a ‘flexibility’ that will enable ‘clarification’ with retroactive effect.”

Unfortunately, because the survey already included 195 questions, I decided to only ask two about Auer deference. I would have loved to have asked more about how the rule drafters “use” Auer deference when drafting regulations/interpreting statutes. I did, however, ask a number of follow-up questions about Chevron, Mead, and Skidmore, which I explore more fully in a separate essay. The basic takeaways from those follow-up questions are that the vast majority of agency rule drafters surveyed think about judicial review when drafting rules and understand Chevron and Skidmore and how their chances in court are better under Chevron. Indeed, two in five rule drafters surveyed agreed or strongly agreed—and another two in five somewhat agreed—that a federal agency is more aggressive in its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies. In other words, there is at least some empirical support for the idea that those deference doctrines affect how agencies draft rules.

It would be interesting to know how exactly agency rule drafters use Auer in order to assess whether Justice Scalia’s intuitions about perverse incentives are empirically grounded. But the fact that two in five rule drafters surveyed indicated that they are using Auer deference when drafting regulations may well further persuade many that Auer is not worth preserving (as such doctrine should play any role at the initial regulation-drafting stage). Cass Sunstein and Adrian Vermeule, by contrast, have reached the contrary conclusion, based on their interpretation of these findings: “A recent study finds that Auer was less well-known to agency drafters of regulations than Chevron, Skidmore, and Mead; drafters themselves knew about Auer only about half of the time. It is most unclear that even the half that knows Auer thinks seriously about it when they are writing regulations.”

This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.

* In quoting this passage from Justice Scalia’s Talk America concurrence, I cannot resist noting that this legislative drafting analogy might be more complicated than the conventional account Justice Scalia depicted. As I explore in a forthcoming article entitled Legislating in the Shadows, federal agencies are substantially involved in drafting the statutes they administer, and the bulk of their legislative drafting assistance occurs in the form of technical drafting assistance—a confidential process that usually begins before a bill is even introduced and then continues through its enactment. The interviews and surveys I conducted of agency officials demonstrate the breadth of their involvement in the legislative process, and one of the core themes that emerged during the interviews is that agencies often suggest that statutory language be drafted broadly to preserve regulatory flexibility. In other words, many of the agency self-delegation criticisms raised against Auer deference could apply with some force to agency statutory interpretation and Chevron deference as well.