Symposium: Auer deference — Supreme Court chooses evolution, not revolution

Ronald Levin is the William R. Orthwein Distinguished Professor of Law at Washington University in St. Louis. He and other “Administrative Law Scholars” submitted an amicus brief in Kisor v. Wilkie, supporting Auer deference.

Kisor v. Wilkie had been widely expected to sound the death knell for the doctrine of Auer v. Robbins – the principle that courts should generally defer to agencies’ interpretations of their own regulations. Auer survived that encounter, but not without a profusion of mixed messages from the justices. Only a plurality, in an opinion written by Justice Elena Kagan on behalf of the Supreme Court’s liberal bloc, squarely endorsed the doctrine on its merits. Chief Justice John Roberts was the swing voter, supporting Auer only on the basis of stare decisis. Meanwhile, the court’s conservative justices, in a fiery and lengthy concurring opinion by Justice Neil Gorsuch, condemned the doctrine and predicted that it will not survive for long. They might be right. In my view, however, Kagan’s approach to the issue is likely to have more staying power than an initial reading of the various opinions may suggest.

The Supreme Court backed into this dispute somewhat awkwardly. The campaign to overrule Auer got its initial impetus from a series of individual opinions written by the late Justice Antonin Scalia, spelled out most fully in Decker v. Northwest Environmental Defense Center. He claimed that the court could and should disapprove Auer on the basis of relatively narrow arguments that would set it apart from the more familiar Chevron doctrine, which provides for judicial deference to administrative interpretations of statutes. Those arguments included the supposed tendency of Auer deference to induce agencies to write regulations vaguely, and also its tension with separation of powers principles. But the former argument never found empirical support, and Gorsuch did not rely on it at all. The two principal opinions in Kisor did clash over the separation of powers issue, but these arguments filled only a relatively small proportion of the respective opinions. For the most part, therefore, the supposedly narrow question of overruling Auer turned into a battle over broad themes that have pervaded the law of deference for decades.

The two principal opinions were far apart on the core question of whether deference to agencies’ interpretations of their own regulations is desirable. Kagan listed a variety of factors that can support an affirmative answer, including the agencies’ scientific expertise, policymaking competence and political accountability; moreover, in some instances the agencies may have direct knowledge about what a regulation was intended to mean. Gorsuch disputed these arguments and also claimed that the Administrative Procedure Act and the Constitution seem to forbid judicial deference on these issues.

Space does not permit a blow-by-blow review of these contentions here. Looking at the big picture, however, what is striking is that Kagan’s arguments are ones that have been embraced by judges for decades. As she wrote, “[t]his Court alone has applied Auer or [its direct predecessor, Bowles v. Seminole Rock & Sand Co.] in dozens of cases, and lower courts have done so thousands of times.” That track record enabled her to deploy a strong stare decisis argument — one that even Roberts found telling. But more than that, it reflects longstanding judicial agreement with the basic principle. Support for what is now known as Auer deference has been bipartisan, though individual judges have probably been influenced at any given time by the identity of the political party that happens to control the executive branch. In contrast, Gorsuch’s concurring opinion in Kisor displays a viewpoint that, in historical terms, is relatively new at the Supreme Court level: full-scale, heated opposition to the very existence of judicial deference. This reflects the disillusionment with the administrative state that has become such a prominent feature of our politics during the past decade. In this respect, at least, President Donald Trump apparently got exactly what he was seeking when he appointed Gorsuch to serve on the court.

Gorsuch repeatedly insisted that deference interferes with a court’s ability to adopt the “best reading” of a regulation. But generations of judges have thought that agencies have much to contribute in terms of helping the courts find the “best reading.” That the concurring justices do not share that belief tells us much about a new level of judicial self-confidence (or disdain for administrative competence) that is portentous for the future.

One other area of contention concerned the qualifiers built into Auer deference. Kagan (here writing for a majority that included the chief justice) spent several pages outlining circumstances in which courts may legitimately overturn agency interpretations notwithstanding Auer. Although Gorsuch faulted the majority for creating complexity, such limitations are an inherent feature of the doctrine. After all, Seminole Rock had said as far back as 1945 that agency interpretations deserve “controlling weight” only if they are not “plainly erroneous or inconsistent with the regulation.” Moreover, two sentences earlier the Supreme Court had said that the doctrine applies only to regulations that the court considers ambiguous, i.e., “if the meaning of the words used is in doubt.” More recently, in 2012, the court had already set forth a variety of limitations on Auer deference in Christopher v. SmithKline Beecham Corp. Kagan’s discussion arguably went even further in narrowing the doctrine. If so, however, that development merely reflected the fact that the doctrine has proved susceptible of gradual evolution over the years.

Critics of Auer have caricatured it as prescribing virtually blanket deference, a notion that has made it easy to attack. But that straw man does not reflect the way Auer has actually been applied over the years. Nobody before the Supreme Court was asking for such an indiscriminate approach to deference.

The real significance of the case is that this “clarified” (or refurbished) version of Auer is far removed from the fundamental antipathy to deference that pervades so much of Gorsuch’s concurrence. Despite the brevity and (perhaps) purposeful obscurity of Roberts’ opinion, it is fair to conclude from Kisor that a majority of the court, as currently constituted, rejects that approach.

Inevitably, Kisor raises questions about the continued viability of Chevron U.S.A. v. Natural Resources Defense Council. The chief justice went out of his way to emphasize that Chevron raises distinguishable issues, and so did Justice Brett Kavanaugh, in another separate opinion. Technically, it does, in that it rests in large part on a presumption that Congress intends for ambiguities in regulatory statutes to be resolved through reasonable administrative interpretations. As suggested above, however, most of the debate in Kisor revolved around general arguments about deference that could apply to either context. Another similarity between the two doctrines is that Chevron, like Auer, is much less deferential in practice than its harshest critics tend to assume. Its impact is softened by a variety of subsidiary principles that courts can cite to justify rejecting an agency’s statutory interpretation or treating Chevron as inapplicable in the first place.

The complexities of Chevron doctrine are sometimes criticized as overly elaborate, and in some respects they probably are. But it is true that the pros and cons of Chevron deference can vary depending on the context. Moreover, the resulting flexibility holds considerable appeal for many judges, as it can give them room to maneuver in particular cases. The details of the doctrine have been in flux over the years, and this process of evolution is likely to continue under the influence of the Supreme Court’s newest members. But Kisor is strong evidence that, barring a change in the court’s membership, the court will continue to adhere to that incremental process, eschewing the total overthrow that Gorsuch would so obviously welcome.