This article is not about the wisdom or lack thereof of Auer/Seminole Rock (“ASR”). Instead, it explores an aspect of ASR “on the ground.” Specifically, this article considers the considerable gaps between how the Supreme Court has framed the doctrine and how the United States Tax Court has applied (or not applied) it. Some of […]
Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies […]
Hear Auer deference, and you’re unlikely to think of criminal law. After all, Auer deference is a doctrine of administrative law, and administrative law has traditionally been viewed as separate from criminal law. And it’s true, Auer deference does not often come up in determining whether a substantive criminal violation has occurred. But Auer deference […]
If the Supreme Court abandons the deferential approach articulated in Auer v. Robbins, will agencies lose interpretive power over their own regulations? Not necessarily. Under Auer and various predecessor cases, an agency’s interpretation of its own regulation controls, unless that interpretation is plainly erroneous or inconsistent with the regulation. Courts do not always precisely explain […]
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 […]
Seminole Rock has a step one inquiry too—and, like Chevron’s step one, it depends on the court’s choice of interpretive method. Chevron’s step one asks whether the authorizing statute “directly” speaks “to the precise question at issue” in the sense of clearly prohibiting or requiring the agency’s position. The method of statutory interpretation that the […]
At the American Association of Law Schools Annual Meeting in January 2017 (in San Francisco), both the Administrative Law Section and Legislation Section will be hosting again their terrific new voices programs. I’ve participated in the adlaw section’s program a couple times, and it’s a terrific opportunity to get feedback from senior scholars in the […]
The Obama administration made news on Friday afternoon when it announced that it was open to discussing settlements with health plans that have sued the administration over risk corridor payments: As in any lawsuit, the Department of Justice is vigorously defending those claims on behalf of the United States. However, as in all cases where […]
Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version […]
You might never have heard of Esquivel-Quintana v. Lynch, but it’s potentially the darkhorse case of this year’s Supreme Court Term. Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars. Yet Esquivel-Quintana threatens to take a big […]
In a January memo to Senator Rubio, the Congressional Research Service laid out an argument for why the Obama administration can’t use the Judgment Fund to settle risk corridor lawsuits. (For prior coverage, see my posts here.) I think CRS is mistaken, and it’s worth explaining why—even if it means getting deep into the weeds […]
Most commentary about Auer deference has been theoretical and dramatic. Justice Scalia, for example, both the author of Auer v. Robbins and one of its early critics, decried Auer as an “evil” that allows “tyrannical laws” to be executed in a “tyrannical manner.” In Auer in Action: Deference After Talk America, I argue that this […]
Many unresolved questions weigh heavily on the debate over Auer deference, including: Is Auer deference “stronger” than Chevron deference? How varied are the procedural formats associated with regulatory interpretations that are reviewed under Auer? What would be the administrative burden of reforming Auer by adding a “Step Zero”? In order to provide empirical answers to […]
Seminole Rock (or Auer) deference prompts many disagreements. Everyone agrees, however, that Seminole Rock has captured the attention of scholars, policymakers, and the judiciary. That is why we at Notice & Comment have decided that the time has come to collect thoughts regarding different aspects of Seminole Rock. Indeed, over the next two weeks, we […]
Steeped in World War II and with inflation growing, the United States sought to avoid repeating the financial mistakes of the first World War and turned for one of the few times in its history to price controls. On the heels of the passage of the Emergency Price Control Act, the Office of Price Administration […]