When even the government does not think it deserves deference, it’s safe to say the government does not deserve deference. And when the government angles for a split decision only by tying itself in legal knots – relying on stare decisis at the same time it encourages the Supreme Court to overrule precedent – it’s safe to say something odd is going on. After all, stare decisis is Latin for “to stand by things decided,” not “to stand by some of the things decided while jettisoning others.” Latin’s a dead language, but it hasn’t decomposed that badly. To me, the takeaway is that the government knows that Auer deference stands on shaky legal ground and is doing what it can to preserve what it can. That’s perfectly understandable, and advocating a partial overruling may have some policy appeal to some people. But it does not make the legal ground under Auer any firmer.
Let me back up and explain what I mean and why I think this is important. The Supreme Court granted cert. in Kisor v. Wilkie to consider overruling Auer deference, which requires courts to defer to an agency’s interpretation of its own regulation so long as the interpretation is not “plainly erroneous or inconsistent with the regulation.” In the view of the Chamber of Commerce of the United States, the case for overruling Auer is strong. There is no legal support for Auer deference – indeed, Auer v. Robbins, 519 U.S. 452 (1997), and its precursor, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), offer no legal justification. Auer deference has allowed agencies to evade the Administrative Procedure Act’s notice and other procedural requirements by issuing sub-regulatory guidance to which courts give the force and effect of law. And it has let agencies stretch their statutory authority past the breaking point, as courts have upheld innumerable agency “interpretations” based on the flimsiest of standards. In short, Auer encourages and encapsulates the regulatory state run amok.
But don’t take the Chamber’s word for it. The situation has become so bad that even the government does not try to defend the status quo. Instead, the government falls back to the position that “Seminole Rock and Auer should not be overruled altogether.” In the government’s view, Auer should be “limited” to truly ambiguous regulations, and “a reviewing court should defer to the agency’s interpretation only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency’s prior views; rests on the agency’s expertise; and represents the agency’s considered view, as distinct from the views of mere field officials or other low-level employees.”
Make no mistake: although that more nuanced approach would not overrule the Auer line of cases “altogether,” it would overrule it in part. Take two examples. As the government recognizes, the Supreme Court has deferred under Auer even when the agency changed positions. See Long Island Care at Home v. Coke, 551 U.S. 158, 170-171 (2007). But the government now argues that “a reviewing court should defer to the agency’s interpretation only if the interpretation . . . is not inconsistent with the agency’s prior views.” And in Auer itself, the Court deferred to an amicus brief, but the government now argues that deference is warranted “only if the interpretation was issued with fair notice to regulated parties,” such as through notice-and-comment procedures. So it appears that under the government’s novel approach, Auer deference would not even apply in Auer.
There are two takeaways, and together they should be the death knell for any form of Auer deference. First, the government’s concessions presumably reflect a calculated judgment that Auer is indefensible in its current form. Second, the best alternative the government could muster is fundamentally at odds with the government’s only legal defense of Auer – stare decisis. A reworked deference doctrine (maybe known henceforth as Kisor deference) cannot be justified on stare decisis grounds because it has never been the law and, as noted, it would actually require the Court to overrule some of its precedents. Once one sets stare decisis to the side, even the government has no defense of Auer.
Daryl Joseffer is the U.S. Chamber Litigation Center’s Senior Vice President and Chief Counsel for Appellate Litigation.