[CJW Note: I mentioned this terrific study on Auer deference, which is forthcoming in the Ohio State Law Journal, during my teleforum on Mortgage Bankers and then again on the blog here. The author, Cynthia Barmore, kindly agreed to do a guest post on the study, which I’ve included below as part of the Administrative Law Bridge Series.]

The Mortgage Bankers concurrences are conspicuous for their views on Auer, but the majority’s quieter discussion in footnote four deserves a closer look. That footnote reflects an understanding ofAuer that aligns with how circuit courts actually use the doctrine, as I explore in a forthcoming article (draft available here) in the Ohio State Law Journal. It’s also a signal that while four Justices are now on record as interested in granting cert to reconsider Auer, there may not be five to overrule it.

The key disagreement between the majority and the concurrences is over how much power Auertransfers from courts to agencies. In footnote four, the Court rejected MBA’s argument that Auer gives interpretive rules the force of law, reasoning that “it is the court that ultimately decides whether a given regulation means what the agency says.” In its view, “Auer deference is not an inexorable command in all cases.”

The majority is exactly right.

In Auer in Action: Deference After Talk America, I explore how circuit courts have applied Auer since 2011. A dataset of 190 cases reveals that the rate at which circuit courts grant Auer deference has fallen steadily from 82.3% before Christopher to 70.6% since Decker.

It is also extremely rare for a court to indicate that Auer requires it to adopt an interpretation it would otherwise reject. Instead, most courts use Auer as a shortcut to avoid lengthy regulatory analysis, or to conclude the agency’s position is a reasonable exercise of discretion to decide an unanswered policy question. Moreover, 20% of those that grant Auer deference conclude the agency’s reading is the best one.

The data undermine a central concern for Auer’s critics, who invariably characterize the doctrine as compelling courts to accept agency interpretations that border on implausible. In his Mortgage Bankers concurrence, Justice Scalia again warned that deference largely “compels the reviewing court to ‘decide’ that the text means what the agency says.” Justice Thomas likewise criticized Auer in large part because he considered it to be a transfer of judicial power to executive agencies. Auer deference, he argued, “precludes judges from independently determining” the meaning of agency regulations.

There is some intuitive force behind their arguments. Justice Scalia is right that agencies couldrespond to Auer by writing “substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.” That would maximize their power during litigation under a system that grants deference to agency interpretations of ambiguous, but not unambiguous, regulations. And Justice Thomas is right that courts could give agency interpretations “controlling weight” without exercising independent judgment.

But that is not the norm. Auer gives agencies a central voice in litigation, but courts still take Auer’s limitations seriously. They use its boundaries—particularly on interpretations that are plainly erroneous, inconsistent, or not the product of the agency’s fair and considered judgment—to evaluate the reasonableness of an agency’s views in ways that often resemble Chevron deference in practice. The data paint a picture of robust judicial review that supports the majority’s understanding of Auer. And a new study by Chris Walker suggests that at least some agency officials view their interests as better served by writing clear rules for regulated entities to follow.

As advocates try to count votes for an eventual Auer challenge, they will be weighing the Chief Justice’s Decker concurrence against his decision to sign onto footnote four in Mortgage Bankers. The Chief’s vote on the merits is anything but clear, and his call in Decker to reconsider Auer may be just that—a call to reconsider, without a clear feeling where he’ll land.

The Court could easily make footnote four the basis of an eventual affirmance of Auer. If it does, it can be confident that circuit courts are willing and able to reject the kind of agency interpretations critics find most problematic. Auer may present theoretical dangers, but overruling it would bring substantial costs in lost predictability and reduced political accountability, without evidence that there is a real problem to solve.

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.