In Loper Bright v. Raimondo, the Supreme Court ruled that Section 706 of the Administrative Procedure Act (APA) prohibits courts from deferring under Chevron v. NRDC to agency interpretations of statutes. What, if anything, does that holding mean for the deference courts give agency interpretations of regulations under Auer v. Robbins?  

On one reading of Loper Bright, Auer is no longer good law. That’s because both Auer and Chevron require courts to defer to agency conclusions of law, and thus not exercise what Loper Bright refers to as “independent judgment.” But this post highlights a second, more technical reading of Loper Bright.

The second reading notes that in Kisor v. Wilkie, a plurality of the Court concluded that Auer was consistent with a part of Section 706—a conclusion that Loper Bright (which focused on other parts of Section 706) does not clearly disturb. What’s more, because a majority of the Court in Kisor voted to uphold Auer on stare decisis grounds, lower courts should pause before reading Loper Bright as overruling Auer sub silentio.

It would be helpful if the Supreme Court soon made clear whether Auer remains entitled to stare decisis protection. Because applying Loper Bright’s stare decisis analysis to what is left of Auer after Kisor suggests that Auer stands on unstable ground.  But whether the Court will be willing to address the issue so soon after Kisor, or will instead require Auer to first undergo a lengthy period of decay (as the Court did with Chevron), remains to be seen.

Background

Under Chevron, a court could defer to an agency’s reasonable interpretation of an ambiguous statute—even when the court did not think that the agency offered the best interpretation of the statute. Loper Bright brought such deference to an end. In particular, Loper Bright held that an important part of the Administrative Procedure Act (APA)—5 U.S.C. § 706—requires courts to exercise their “independent judgment” when interpreting statutes.  And such “independent judgment” did not leave room for Chevron deference.

But courts defer to agency interpretations of law outside of the statutory context. Most notably, under the rationales offered in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., courts defer to agency interpretations of agency regulations. Like Chevron deference, Auer and Seminole Rock deference (which I will refer to as Auer deference for short) can require a court to defer to an agency’s conclusion of law even when the court does not think that the agency’s conclusion is best.  

Does Auer deference also run afoul of Section 706? The Supreme Court considered that very question only a few years ago in Kisor v. Wilkie. In Kisor, which was decided in 2019, a four-justice plurality explained that Auer was consistent with Section 706. The fifth and deciding vote was cast by the Chief Justice, who authored a solo concurrence upholding Auer on stare decisis grounds.

Different Parts of Section 706

One might think that the Kisor plurality’s interpretation of Section 706 would have been upset by the Loper Bright majority’s interpretation of Section 706. After all, if Section 706 requires courts to exercise their “independent judgment,” and thus not defer to agencies when interpreting statutes, wouldn’t Section 706 also require courts to similarly exercise their “independent judgment,” and thus not defer to agencies when interpreting regulations? That is certainly a fair (albeit broad) reading of Loper Bright, and I predict that some jurists might adopt that reading as their own.  Indeed, as Professor Haley Proctor recently highlighted on this blog: D.C. Circuit Judge Rao has already adopted something quite close to this position—albeit in the context of courts deferring to agency interpretations of contracts, not regulations.  

But when it comes to interpreting regulations, one can envision jurists offering a narrower, more technical reading of Loper Bright. This narrower reading might note that the Kisor plurality and the Loper Bright majority focused on different parts of Section 706. Consider the text of Section 706, which states in part (bolded brackets and numbers added by me): 

“To the extent necessary to decision and when presented, the reviewing court shall [1] decide all relevant questions of law, [2] interpret constitutional and statutory provisions, and [3] determine the meaning or applicability of the terms of an agency action.”

Loper Bright focused primarily on the parts or Section 706 that I have labeled above as [1] and [2].  To wit, Loper Bright concluded that, because Section 706 requires courts to [1] “decide all questions of law” and [2] “interpret . . . statutory provisions,” Section 706 prohibits courts from offering Chevron deference. To be sure, the Loper Bright majority did reference provision [3] when it quoted a longer portion of Section 706. But that quotation seemed to be little more than an introductory citation, as the majority went on to focus more squarely on provisions [1] and [2].

By comparison, the Kisor plurality focused on provision [3].^[1]  Given as much, a lower court might conclude that, because Auer deference is a permissible means of [3] “determin[ing] the meaning” of a regulation (at least according to the Kisor plurality), then the legality of Auer deference was not disturbed by Loper Bright’s instance that Chevron amounted to an impermissible means of [1] “decid[ing]” question of law or [2] “interpret[ing]” statutory provisions.

To be sure, [3] “determin[ing] the meaning” of a regulation sounds a lot like [1] “decid[ing]” a question of law.  Given as much, one could take issue with an attempt to place too much weight on slight textual distinctions between the portions of Section 706.^[2]  But principles of stare decisis (which a full majority recently stressed in Kisor) should give lower courts pause before concluding that Loper Bright overruled Auer sub silentio.^[3]

Stare Decisis

Recall that in Kisor, the Chief Justice cast the fifth and decisive vote to uphold Auer on stare decisis grounds. In doing so, the Chief Justice was careful to explain that the question of whether Auer should be overruled was “distinct” from whether Chevron should be overruled.  Picking up where he left off in Kisor, the Chief Justice’s majority opinion in Loper Bright stressed that three stare decisis considerations weighed in favor of overruling Chevron.

The first stare decisis factor concerns “the quality of [the precedent’s] reasoning.” In Loper Bright, the majority observed that Chevron did not “grapple[] with APA.”  The Kisor plurality, by comparison, most certainly did. As was explained above, the Kisor plurality concluded that Auer was consistent with Section 706. Under this first factor, then, Auer seems to be on safer footing than Chevron was.  

The second and third stare decisis factors flagged in Loper Bright, however, suggest that Auer is on shakier ground. Consider the second stare decisis factor, which concerns a precedent’s “workability.”  The Loper Bright majority reasoned that Chevron was unworkable in part because jurists had difficulty finding ambiguity. But Auer seems vulnerable to a similar critique. That’s because, after Kisor, a court must determine that a “genuine ambiguity” exists before a court can offer Auer deference. If courts have as much difficulty finding ambiguity in the Auer context as they did in the Chevron context, then Auer seems vulnerable. 

What’s more, in applying this second stare decisis factor in Loper Bright, the Court explained that it had “been forced to clarify [Chevron] again and again,” which “only added to Chevron’s unworkability.” On this score, too, Auer seems vulnerable.  In particular, the Kisor plurality managed to salvage Auer by announcing that Auer deference was only permissible after courts slogged through an exhaustive 5-factor test. For this reason, Justice Gorsuch observed in Kisor that Auer only survives in “maimed” and “zombified” form.  

Finally, the third stare decisis factor flagged in Loper Bright speaks to “reliance on the decision.”  Here the Court explained that its “constant tinkering with and eventual turn away from” Chevron made it “hard to see how anyone . . . could reasonably expect a court to rely on Chevron in any particular case.” Again, it seems that the same critique could be made of Auer, as Kisor seems to have “tinker[ed]” with Auer quite a bit. But one suspects that at least some justices will not be eager to so quickly recognize Kisor as evidence of problematic tinkering. And so, time will tell whether a majority of the Court will require a lengthy period of “turn[ing] away” from Auer, mirroring how the Court treated Chevron, before declaring Auer bad law.

Conclusion

What is the status of Auer after Loper Bright? It would seem that Auer is in tension with the overall thrust of Loper Bright. But as a technical matter, the Loper Bright majority and the Kisor plurality focused on different parts of Section 706. And given the recency of Kisor, lower courts should pause before concluding that Loper Bright overruled Auer sub silentio.  

It would be helpful if the Supreme Court soon made clear whether Auer remains entitled to stare decisis. As an initial application of the stare decisis factors stressed in Loper Bright suggests that Auer is no longer deserving of such protection. But whether the Court will be willing to declare as much so soon after Kisor, or will instead require Auer to first undergo a lengthy period of disuse (as the Court seemed to require of Chevron), remains to be seen.

Chad Squitieri is an assistant professor of law at the Catholic University of America, where he also serves as a Managing Director for the Center for the Constitution and the Catholic Intellectual Tradition. 

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^[1] Complicating matters some, Justice Gorsuch’s Kisor concurrence notes that although the Kisor case did not technically“arise under the APA, . . . the statute that govern[ed] . . . [wa]s plainly modeled on the APA and contains essentially the same commands.”  The governing statute (38 U. S. C. § 7292(d)(1)) did not explicitly mirror Section 706’s requirement that courts “determine the meaning or applicability of the terms of an agency action.” But rightly or wrongly, that is the portion of Section 706 that the plurality focused on in Kisor.

^[2] A particularly narrow reading of Loper Bright might hold that, because Section 706 contains a specific provision capable of resolving the statutory issues presented by Chevron (i.e., [2] “interpret[ing] . . . statutory provisions”), then Loper Bright’s holding should be limited to that part of Section 706 alone. Indeed, “interpret[ing]” might call for “independent judgment” in a way that “decid[ing]” does not; a court might “decide” a question of law by flipping a coin. But “decid[ing]” legal questions in such a way might run afoul of Constitutional provisions (such as the Due Process Clause or the Article III vesting clause)—substantive Constitutional values that might inform the meaning of Section 706’s reference to “decid[ing].”

^[3] Jurists might also distinguish Chevron and Auer on the grounds that, because the APA was “enacted . . .  the year after Seminole Rock,” Section 706 could be thought to incorporate Auer but not Chevron. The merits of that distinction turn on a historical analysis that I do not offer here.