In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. SmithKline Beecham Corp., at least some circuit court opinions suggest that a less deferential but more complicated version of Auer deference may be emerging. That complexity may, in turn, offer an additional reason why we ought to consider whether keeping Auer review is worth the candle.

Elsewhere in this series, Cynthia Barmore contended that the rate at which circuit courts grant Auer deference has fallen meaningfully since the Court decided Christopher. More qualitatively—and this observation is merely impressionistic rather than empirical—the circuit courts seem to be approaching analysis under the Auer standard differently, both in asking whether Auer rather than Skidmore provides the appropriate evaluative standard and in putting forth greater effort to assess regulatory meaning before deferring. In other words, the Auer doctrine may be developing its own Step Zero, Step One, and Step Two.

The Auer standard calls for giving an agency’s interpretation of its own regulations “controlling weight, unless that interpretation is plainly erroneous or inconsistent with the regulation.” Deference under Auer has often seemed to emphasize the doctrine’s controlling weight requirement, with little regard paid to exactly what might make an agency’s interpretation plainly erroneous or inconsistent with a regulation. Like the statutes they interpret, agency regulations are often facially ambiguous, giving rise to the disputed interpretations for which agencies claim deference under Auer. Yet, many judicial opinions that have applied Auer without question also have been comparatively shallow in their efforts to discern regulatory meaning using sematic canons, dictionary definitions, or regulatory history and purpose—in other words, the kinds of analytical tools one might expect to see in a comparable case challenging an agency’s interpretation of a statute. And, as the agency regulations at issue in these cases typically are not explicit in addressing the interpretive disagreement, courts could move fairly readily to give an agency’s agency interpretations of those regulations controlling weight. This approach toward Auer has presumably contributed to the standard’s high incidence of deference historically.

In Christopher, Justice Alito’s majority opinion stated that the Auer standard “does not apply in all cases” involving agency interpretations of agency regulations, and he synthesized past applications to offer a laundry list of circumstances in which it would be “undoubtedly inappropriate” or “unwarranted.” For the many circumstances in which Justice Alito suggested that Auer deference would be inappropriate, he set up Skidmore as an alternative (and theoretically less deferential) standard of review. Since then, several circuit court opinions have described Christopher as establishing criteria or providing factors for ascertaining whether Auer or Skidmore provides the appropriate standard for evaluating the agency interpretation at bar—much as United States v. Mead Corp. provides its force-of-law requirement for applying Chevron rather than Skidmore review to agency statutory interpretations.

Additionally, whether or not Justice Alito intended to accomplish as much, several circuit court opinions since Christopher have approached the question of whether an agency’s interpretation of a regulation is “plainly erroneous or inconsistent with the regulation” by employing traditional tools of statutory construction to analyze—in very Chevron-like terms—whether the regulation being interpreted is “ambiguous” or “unambiguous.” As in the Chevron context, the regulations might unambiguously support the agency’s interpretation or might unambiguously be contrary to the agency’s interpretation. But the opportunity for giving Auer’s “controlling weight” or deference to the agency’s interpretation comes up only if the regulation is ambiguous.

Narrowing the scope of Auer’s applicability and engaging in more independent judicial analysis to evaluate regulatory meaning both have the effect of reducing the incidence of judicial deference under the Auer standard. But although the weaker Auer that seems to be emerging from Christopher and its progeny might persuade some Justices to honor stare decisis instead of overturning Auer, doing so comes with its own cost: doctrinal complexity.

Scholars and judges alike complain about the arcane debates over Chevron’s scope and operation. But at least the Court has articulated a theoretical basis for Chevron rooted in congressional delegation and intent. (Indeed, in a forthcoming article to be published next year in George Washington University Law Review, Nicholas Bednar and I argue that congressional delegation of major policymaking discretion to administrative agencies makes some variation of Chevron review inevitable.) By comparison, as its critics have argued, the Court has never offered a solid theoretical rationale in support of the Auer standard. We already apply Skidmore to formats like interpretive rules and amicus briefs when agencies use them to interpret statutes. It is not always so easy to tell when those formats interpret regulations rather than statutes. It certainly would be easier for courts just to apply Skidmore in evaluating agency interpretations of agency regulations, and probably more theoretically defensible. So is it really worth retaining Auer review if it takes on all of Chevron’s trappings? I, for one, am not so sure it is.

* I do not think I am exaggerating for the sake of argument in supposing this outcome. I am at least sympathetic to arguments that Auer deference is inconsistent with separation of powers principles. Yet, overturning a standard of review that dates back more than seventy years and has been applied in hundreds of cases is not something the Court is likely to take lightly. And a quick survey of the Court further suggests that the separation of powers rationale for repudiating Auer deference is unlikely to garner five votes. The late Justice Scalia, the leading voice against the Auer standard, is no longer with us to lead that charge. Justice Thomas clearly stated his own objections to Auer deference in Perez v. Mortgage Bankers Association, though he stopped short of calling unequivocally for overturning Auer. Chief Justice Roberts and Justice Alito have also expressed willingness to reconsider Auer given adequate briefing of the issue. Indeed, in Mortgage Bankers, Justice Alito described the arguments of Justices Scalia and Thomas as “offer[ing] substantial reasons why the [Auer] doctrine may be incorrect.” But in Christopher v. SmithKline Beecham Corp., Justice Alito arguably weakened Auer deference without killing it outright, which suggests that he might be satisfied with the curtailment of Auer as described in that case. And Chief Justice Roberts’s interest in repudiating Auer deference seems even squishier, as he expressed merely that reconsideration “may be appropriate . . . in an appropriate case” in Decker v. Northwest Environmental Defense Center, and he did not join any of the opinions calling for reconsideration in Mortgage Bankers. Meanwhile, none of Justices Kennedy, Breyer, Ginsburg, Kagan, or Sotomayor has joined in any of the calls to reconsider the validity of the Auer standard. Among that group, some obviously care little about the nuances of judicial deference doctrine, while others will simply have a completely different view of separation of powers principles from Justices Scalia and Thomas. Given this combination of equivocation, likely disagreement, and outright disinterest, I expect stare decisis to prevail and the Auer standard to survive.

Kristin E. Hickman is a Distinguished McKnight University Professor and the Harlan Albert Rogers Professor of Law at the University of Minnesota Law School.

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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.