{"id":158,"date":"2018-02-13T10:42:09","date_gmt":"2018-02-13T15:42:09","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/?page_id=158"},"modified":"2025-05-12T11:14:31","modified_gmt":"2025-05-12T15:14:31","slug":"an-empirical-defense-of-auer-step-zero","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/in-print\/volume-106\/volume-106-issue-2-january-2018\/an-empirical-defense-of-auer-step-zero\/","title":{"rendered":"An Empirical Defense of Auer Step Zero"},"content":{"rendered":"

Since 1945, the Supreme Court has given binding respect to a federal\u00a0agency\u2019s interpretation of its own regulation unless the agency\u2019s construal is\u00a0incorrect.1<\/sup> This principle is commonly known as either Auer<\/em>2<\/sup> or Seminole Rock<\/em>3<\/sup>\u00a0deference, named after the two cases most often associated with the doctrine\u2019s\u00a0canonical formulation4<\/sup>\u2014that an agency\u2019s regulatory construction is of \u201ccontrolling\u00a0weight unless it is plainly erroneous or inconsistent with the regulation.\u201d5<\/sup>\u00a0Although this strong form of deference has existed for more than seventy years,\u00a0it has become the subject of an intense academic debate only in the last two\u00a0decades and the polemics have created practical consequences. In 2013, for\u00a0example, Chief Justice John Roberts announced that the Supreme Court has\u00a0\u201csome interest in reconsidering\u201d the doctrine.6<\/sup> In the current 115th Congress,\u00a0the House of Representatives has passed legislation that would replace Auer\u00a0<\/em>deference with de novo review7<\/sup> and the Senate is considering a bipartisan\u00a0companion bill that would replace Auer<\/em> deference with non-binding judicial\u00a0respect.8<\/sup><\/p>\n

The purpose of this study is to inform the ongoing and consequential debate\u00a0over Auer<\/em> deference with empirical data. To this end, I assessed the entire\u00a0population of U.S. Courts of Appeals decisions from 1993\u20132013 that employed\u00a0Auer<\/em> to review an agency\u2019s regulatory interpretation. To enrich this investigation\u00a0of Auer<\/em> with a comparative analysis, I created datasets reflecting every U.S.\u00a0Court of Appeals decision from 1993\u20132013 that employed the other two primary\u00a0forms of deference in administrative law: binding Chevron<\/em>9<\/sup> deference and\u00a0nonbinding Skidmore<\/em>10<\/sup> respect. The intent behind conducting a controlled\u00a0comparison of multiple doctrines in the same courts during the same duration is\u00a0to afford greater depth of analysis and thereby allow the drawing of stronger\u00a0inferences.<\/p>\n

Part I of this Note assesses four categories of argumentation swirling about\u00a0Auer<\/em> deference, beginning with proponents who assert that Auer<\/em> is appropriate\u00a0because agencies, and not courts, are better equipped to make policy by\u00a0interpreting legal texts with the force of law given agencies\u2019 relative advantages\u00a0in subject matter expertise and political accountability.11<\/sup> Critics counter that the\u00a0Auer<\/em> doctrine encourages poor rule drafting and procedural shortcuts by combining\u00a0both rule writing and rule exposition authority in the Executive Branch.12<\/sup>\u00a0The third category of participants in the Auer<\/em> debate is composed of those who\u00a0warn that reforming the doctrine could lead to unintended consequences, including\u00a0a decrease in participatory policymaking, less precise regulations, and\u00a0unmanageable administrative burdens.13<\/sup> The fourth perspective regarding Auer\u00a0<\/em>is provided by empirical analyses, the results of which have been inconsistent:\u00a0one study suggests Auer<\/em> is a form of super-strong deference, another claims it is\u00a0no stronger than other forms of deference, and another indicates that the\u00a0government\u2019s win rate under Auer<\/em> has diminished in recent history.14<\/sup><\/p>\n

Part II explains the methodology of this study. I used database searches to\u00a0identify and review the entire population of U.S. Courts of Appeals decisions\u00a0from 1993\u20132013 that employed the Auer<\/em> framework. Because the respective\u00a0populations of 1993\u20132013 circuit court cases relying on Chevron<\/em> and Skidmore<\/em>\u00a0deference were too great to practicably review for this study, I used a simple\u00a0probability method to create samples from which I could draw inferences about\u00a0the population as a whole. Thus, I collected an original dataset of variables\u00a0attendant to 1,047 published federal courts of appeals decisions: 416 for Auer<\/em>,\u00a0392 for Chevron<\/em>, and 239 for Skidmore<\/em>. Across these decisions, the U.S. Courts\u00a0of Appeals reviewed 1,120 discrete textual interpretations by regulatory agencies.\u00a0For each interpretation, I recorded identifying information\u2014case name,\u00a0case citation, and agency involved\u2014and whether the government\u2019s interpretation\u00a0was accepted by the court. I also assigned each interpretation to one of\u00a0twelve categories of administrative procedure. This study contributes to a\u00a0growing body of empirical analyses of deference regimes as applied by Article\u00a0III courts,15<\/sup> yet its methodology differs from its predecessors in three important\u00a0ways. First, this is the first analysis to systematically compare population-level\u00a0statistics across multiple deference regimes as employed by U.S. Courts of\u00a0Appeals.16<\/sup> Second, this study covers twenty years, a longer timespan than\u00a0previous studies.17<\/sup> It is therefore more representative of the courts\u2019 behavior.\u00a0Finally, this analysis provides a more refined investigation of administrative\u00a0processes than prior empirical studies.18<\/sup><\/p>\n

Part III sets forth the results of the study and draws three significant inferences\u00a0from the data regarding the ongoing debate over Auer<\/em> deference. First, the\u00a0data indicate that over the twenty-year period, Auer<\/em> deference was indeed\u00a0stronger than Chevron<\/em>. From 1993\u20132013, the federal government prevailed in\u00a074% of cases when the court invoked Auer<\/em> and in 68% of cases when it invoked\u00a0Chevron<\/em>.19<\/sup> However, the data also lend support to the thesis that the strength of\u00a0Auer<\/em> in the circuit courts has narrowed in the wake of Supreme Court decisions\u00a0that constrained the doctrine.20<\/sup> Comparative data contradict the likelihood that\u00a0the government\u2019s diminished win rate under Auer<\/em> is part of a larger trend across\u00a0all deference doctrines. After 2006, the government\u2019s win rate fell significantly\u00a0when it invoked Auer<\/em>, whereas its win rate under Chevron<\/em> and Skidmore\u00a0<\/em>remained flat and slightly increased, respectively.21<\/sup> Also, at any time scale, the\u00a0government\u2019s win rate when courts invoked Auer<\/em> and Chevron<\/em> was significantly\u00a0greater than when it invoked Skidmore<\/em>.22<\/sup> This makes sense given that the\u00a0former are binding doctrines, whereas the latter is nonbinding.<\/p>\n

The second significant result demonstrates the unexpected breadth of administrative\u00a0process associated with Auer<\/em> deference. To date, the Auer<\/em> debate has\u00a0focused on the extent to which the doctrine encourages policymaking through\u00a0informal procedures that deprive the public of notice and participation. Inherent\u00a0in this controversy is an assumption, sometimes explicit, that virtually all the\u00a0interpretations that benefit from Auer<\/em> deference are found in informal issuances.\u00a0In fact, the results of this study indicate that courts give Auer<\/em> deference to\u00a0interpretations falling across the continuum of administrative procedure in a\u00a0surprisingly balanced manner. There are, for example, significantly more interpretations\u00a0subject to Auer<\/em> that result from formal adjudications than from nonlegislative\u00a0rules.23<\/sup> Overall, federal courts of appeals applied the Auer<\/em> framework\u00a0more to interpretations resulting from administrative processes that carry the\u00a0force and effect of law than to interpretations that do not.24<\/sup> This surprising\u00a0result directly bears on the argument set forth by reform skeptics. These\u00a0skeptics claim that an unintended consequence of reforming the doctrine could\u00a0be to encourage agencies to exercise a form of discretion under SEC v. Chenery\u00a0Corp.,25<\/sup> known commonly as \u201cChenery II discretion,\u201d26<\/sup> to shift policymaking\u00a0from rulemaking to adjudication.27<\/sup> This argument is based on the understanding\u00a0that an agency\u2019s discretion to choose between adjudication and rulemaking is a\u00a0substitute for Auer<\/em>; however, the data suggest that these two doctrines are\u00a0complements, which should depress the likelihood of unintended consequences\u00a0resulting from reforming Auer<\/em>.<\/p>\n

The third significant result of this study is the quantification of the administrative\u00a0burden incurred by replacing or reforming Auer<\/em>. Using this study\u2019s dataset,\u00a0it is possible to create a simple model that estimates the administrative burden\u00a0of either replacing Auer<\/em> deference with Skidmore<\/em> respect or reserving Auer<\/em> for\u00a0interpretations stemming from administrative procedures that carry the force\u00a0and effect of law.28<\/sup> In this manner, the study tests the claim made by Auer<\/em>\u2019s\u00a0defenders that reforming the doctrine would unduly hinder administrative and\u00a0judicial efficiency. As this study demonstrates, fully rejecting Auer<\/em> and replacing\u00a0it with residual Skidmore<\/em> deference would have resulted in an estimated\u00a0fifty-one fewer agency regulatory interpretations surviving judicial review in the\u00a0circuit courts from 1993\u20132013,29<\/sup> or about one interpretation per circuit court every five years.30<\/sup> These results belie claims that disrupting the doctrine would\u00a0lead to chaos in regulatory agencies and federal courts.<\/p>\n

After assessing the four viewpoints in the Auer<\/em> debate in light of the\u00a0empirical data in this study, I conclude that the Supreme Court should reform\u00a0Auer<\/em>, not reject it. Virtually all criticism leveled at the doctrine would be\u00a0addressed if the Court limited Auer<\/em> deference in the same fashion it does\u00a0Chevron<\/em> deference\u2014by limiting the judicial respect accorded to interpretations\u00a0resulting from formal administrative procedures that carry the force and effect\u00a0of law. For starters, such reform would address the hole in the institutional\u00a0argument advanced by Auer<\/em>\u2019s proponents. If Auer<\/em> is right for the same reasons\u00a0that Chevron<\/em> is right, Auer<\/em> should be treated the same, if for no other reason\u00a0than uniformity. Reforming Auer<\/em> would also placate Auer<\/em>\u2019s critics by closing\u00a0the loophole they allege the doctrine creates in the Administrative Procedure\u00a0Act (APA).31<\/sup> Finally, as discussed, the data deflate the concerns expressed by\u00a0skeptics of Auer<\/em> reform to the extent the data suggest that agencies\u2019 Chenery II\u00a0<\/em>discretion is a complement of, not a substitute for, Auer<\/em>. All told, reforming\u00a0Auer<\/em> is a modest check accompanied by minimal administrative burden that\u00a0would achieve doctrinal uniformity and answer unaddressed criticisms.<\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Since 1945, the Supreme Court has given binding respect to a federal\u00a0agency\u2019s interpretation of its own regulation unless the agency\u2019s construal is\u00a0incorrect.1 This principle is commonly known as either Auer2 […]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":200,"menu_order":4,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-158","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/158","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/comments?post=158"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/158\/revisions"}],"predecessor-version":[{"id":23757,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/158\/revisions\/23757"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/200"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/media?parent=158"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}