Department of Justice asked U.S. Supreme Court to narrow Auer deference

The Department of Justice (DOJ) asked the U.S. Supreme Court to limit, but not throw out, Auer deference in its legal brief for the upcoming case Kisor v. Wilkie. Auer deference, also called Seminole Rock deference, requires federal courts to yield to agency interpretations of ambiguous regulations made by the same agency unless the interpretation is plainly wrong or is inconsistent with the regulations.
The DOJ raised several concerns about Auer deference in its brief filed on February 25, 2019:
  • It has an unclear historical basis.
  • The U.S. Supreme Court has not articulated a consistent rationale for it.
  • It is more difficult to argue that Auer deference is based on implicit congressional delegation of interpretive authority than Chevron deference.
  • It is in tension with the distinction between interpretive and legislative rules found in the Administrative Procedure Act (APA).
  • It can cause practical problems for those subject to regulations.
In light of those objections, the DOJ asked the court to limit Auer deference. It argued that reviewing courts should be able to question unreasonable agency interpretations of regulations. The brief also said that courts should only defer to agency interpretations that were issued with a fair notice to those subject to the relevant regulations, that were consistent with prior agency views, that rested on agency expertise, and that represented the considered view of the agency and not the view of a low-level employee.
Auer deference was first described in Seminole Rock in 1945 and was established by Auer v. Robbins in 1997. Although the DOJ asked the court to limit Auer deference, it specifically asked them not to overturn Seminole Rock and Auer in their entirety. The DOJ made several arguments against throwing out Seminole Rock and Auer:
  • Auer deference has been part of administrative law for decades (regulated parties have relied on decisions based on Auer to conduct their business).
  • Narrowing Auer deference would cause less disruption than overturning it.
  • Eliminating Auer deference would undermine the certainty and predictability of the regulatory environment because agency guidance would become less reliable.
  • Auer deference promotes political accountability for regulatory policy and uniformity in federal law.
  • Auer deference respects the scientific and technical expertise of agencies.
The U.S. Supreme Court is set to hear oral arguments in Kisor v. Wilkie on March 27, 2019.