Yesterday Ron Cass, Chris DeMuth, and I filed an amicus brief in Gloucester County School Board v. G.G. — the Supreme Court case that considers the U.S. Department of Education’s interpretation of Title IX with respect transgender students and access to bathrooms in public schools.

We do not weigh in on the merits of the statutory interpretation issue. Nor do we argue that the Court should eliminate Auer deference, which commands courts to give an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” (If you are interested in those arguments, check out the Cato Institute’s amicus brief at the cert stage.) Instead we argue that if Auer deference is retained, it should be limited in ways similar to which the Supreme Court has limited Chevron’s domain.

Here’s a taste of our argument from the brief’s argument summary:

This case asks if courts should give the substantial deference called for under Auer v. Robbins, 519 U.S. 452 (1997) (Auer), to interpretations of agency rules contained in an unpublished agency letter that does not carry the force of law and was adopted in the context of the dispute in which deference is sought. For anyone first encountering the issues of deference, merely stating the question would suggest an answer: surely, granting deference to such interpretations would increase agency authority beyond what is reasonably attributable to law, invite manipulation, and disserve interests in public notice and well-grounded decision-making. That answer is not just what a naïve observer would conclude; it also is consistent with this Court’s past decisions and with a thoughtful understanding of the reasons for and limits on deference.

Auer deference draws on concepts associated with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (Chevron). Indeed, Auer’s author stated: “Auer deference is Chevron deference applied to regulations rather than statutes.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1339 (2013) (Scalia, J., concurring in part and dissenting in part). Auer interpreted the Court’s earlier decision in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (Seminole Rock), as providing a basis for treating questions respecting the meaning of agency rules in similar fashion to questions respecting agency authority under statutes. See Auer, 519 U.S. at 461-62. Although the questions are substantially different, understanding the proper scope of Auer deference begins with understanding the proper scope of Chevron deference.

. . .

At a minimum, the broader logic of deference to agency decisions strongly supports limiting Auer to settings in which agencies have been given clear discretionary authority to make particular determinations in specific ways. If the Court is inclined to continue Auer deference, it should condition that deference most importantly on the legislative commitment of discretionary authority. If it is inclined to find that authority implicit, rather than explicit, in statutes, the Court should give special weight to use of procedures consistent with decisions having the force of law, with notice to affected parties, and with input and analysis that provide special reasons for deference. Those factors replicate the considerations this Court has deemed relevant to evaluating the scope of discretion conferred by law and the deference appropriate under Chevron and pre-Chevron consideration of deference to agency decisions purporting directly to implement statutory provisions. See, e.g., Mead, 533 U.S. at 230-34; Christensen v. Harris County, 529 U.S. 576, 587 (2000); Reno v. Koray, 515 U.S. 50, 61 (1995); Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144, 157 (1991). See also Barnhart v. Walton, 535 U.S. 212, 219-222 (2002) (consistency, limited scope of decision, and evidence of careful consideration relevant to Chevron deference).

The full brief is available here.