A Strong Defense of Auer Deference (10/30/18)

A lot of judicial and commentator angst has surfaced in recent years about so-called Auer deference.  Auer deference is accorded to sub-regulatory interpretations of ambiguous regulations text.  It is analogous to Chevron deference regulations interpretations of ambiguous statutory text.  It basically says that reasonable agency subregulatory interpretations of ambiguous regulations will be respected.  Auer deference is named for the case, Auer v. Robbins, 519 U.S. 452 (1997), but it is also referred to as Seminole Rock deference named for an earlier case, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).  In a nutshell, arguments against Auer deference are that (i) conservatives don't like agencies to have much power (I am not sure this is a legal argument rather than an ideological one to limit the big state); (ii) Chevron deference is one thing, but allowing the agency the power to promulgate ambiguous regulations that it can then manipulate by subregulatory power is just too much, and (iii) some subthemes within these themes.

In United States v. Havis, ___ F.3d ___, 2018 U.S. App. LEXIS 29628 (6th Cir. 2018), here, Judge Stranch in concurrence has a short and robust argument for Auer deference.  Since I am an Auer (and Chevron) fan (because I believe that Auer like Chevron is reasonably constrained), I offer here Judge Stranch's argument (cleaned up):

I write separately to explain why Auer deference presents no constitutional problem. See Auer v. Robbins, 519 U.S. 452, 461 (1997). As we note here (Lead Op. at 4, 5), Mistretta made clear that the Sentencing Commission is not at odds with the principle of separation of powers because Congress may delegate complex matters to coordinate Branches as long as it clearly delineates the general policy, the agency to apply it, and sets the boundaries of this delegated authority" Mistretta v. United States, 488 U.S. 361 (1989). We also reference Stinson v. United States, 508 U.S. 36 (1993), which established that commentary promulgated by the Sentencing Commission is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline. Supreme Court authority thus established the boundaries of deference. Violation of these boundaries resulted in our acknowledgement that the Sentencing Commission may not escape its statutory mandate, which requires that new Guidelines be adopted through notice and comment rulemaking, subject to Congressional review.  

It is true that the Government asked us to defer to Commission commentary instead, but its request is not evidence that Auer, Mistretta, and Stinson create some irreparable problem. We can hardly fault the Government for advancing an argument that seeks to enhance its position. That is the job of attorneys who represent parties in litigation. Instead of creating a constitutional problem, the Government's argument mobilized a constitutional principle that Auer deference anticipates: regardless of what interpretation the Government proposes, it is the court that ultimately decides whether a given regulation means what the agency says. 

Nor does it appear to me that immense power has been granted to agencies pursuant to Auer. Agencies do not get to decide within a vacuum: they operate within a complex system of checks and balances. To begin with, agency power is derivative of the statutory grant that creates the entity and defines the scope of its power. Our deference doctrines are thus an application of the authority that the legislature chose to grant in particular circumstances. And while the scope of the granted authority may be broad, it operates within specified limits. An agency's rulemaking must comply with the statute, and the agency's interpretation must comply with the rule. It is the courts that ultimately determine whether the agency has acted within the scope of its statutory grant. Perez also reminds us that not only do agency statutes often contain their own safe-harbor or other limiting provisions, but the APA itself contains a variety of constraints on agency decisionmaking—the arbitrary and capricious standard being among the most notable. 

Finally, I am perplexed by the argument that Auer has led agencies to regulate in a way that is broad and vague with, apparently, the goal of creating maximum leeway to define the meaning of a regulation somewhere down the road. That claim assumes a world of political continuity and agency longevity that we would be hard pressed to find today. It also ignores multiple incentives and constraints. Consider the internal pressures within the agency and throughout the governing executive branch to implement the agency's program and the external pressures from those regulated and their lobbyists to obtain predictability, both of which encourage clear regulations. These stakeholders are focused on bringing their own expertise to bear on highly complex, policy-driven issues that play out on a very practical level. This argument relies on one more dubious assumption—that agency action is driven by the views of the courts on Auer deference. It seems to me that the immediate pressures listed above are far more salient. Research supports this conclusion. One recent study showed that barely half of agency drafters responding to a survey even knew what Auer was, and even fewer considered it when drafting rules.  

Since the 1930s, courts have recognized that in our increasingly complex society, replete with ever changing and more technical problems, Congress must be able to delegate power according to common sense and the inherent necessities of the government co-ordination. The Supreme Court has long recognized the need for some level of judicial deference to the agencies that, guided by empirical research and experience, focus on mastery of a particular set of complex issues. The current arguments for curtailing agency deference risk dismissing a system that Congress created out of a need to employ the significant expertise held by agencies and their stakeholders in complex areas of the law and instead substituting courts that are ill-equipped for the task. Our carefully developed doctrines of deference strike the proper balance among our three branches by respecting both the exercise of legislative authority and the judiciary's right to make the ultimate decision whether a given regulation means what the agency says.

By the way, the argument is also an argument for Chevron deference.

Judge Stranch is an Obama nominee.  See Wikipedia, here.