Auer Deference: Doubling Down on Delegation’s Defects

October 30, 2018

Together with the better-known Chevron deference rule, the doctrine
articulated in Auer v. Robbins two decades ago—which makes reasonable
administrative constructions of ambiguous administrative rules binding on
courts in most circumstances—has become a focal point for concerns about
the expanding administrative state. Auer deference, even more than Chevron
deference, enlarges administrative authority in ways that are at odds with
basic constitutional structures and due process requirements. Objections to
Auer have provided cogent reasons for why courts should not grant
deference to administrative interpretations merely because an agency’s rule
is unclear. The most commonly voiced objections, however, do not explain
why Congress should be disabled in all instances from granting
administrators discretionary authority over rule interpretation—even in
settings that do not raise serious risks of partiality or unfair surprise in
administrative construction.

Examining the relationship between statutorily directed deference and
constitutional-structural principles clarifies the essential underlying
objection to Auer and the limits of that objection. When Congress by law
confers discretionary authority that does not exceed its constitutional power
to delegate functions to an administrator, courts should respect that
assignment of authority, unless it violates other specific constitutional
commands. Yet, when delegations are at most only arguably consistent with
the Constitution, extending deference—especially expanding deference as
Auer does in successive determinations—exacerbates delegations’

A reinvigorated nondelegation doctrine would solve the major Auer
problem directly, and elimination of Auer-like deference would clearly be
preferable to retaining the doctrine in its current form. Short of that,
demanding that the statutory basis for deference is clearly articulated would
provide a modest first step in cabining problems associated with
constitutionally questionable delegations of lawmaking authority. Those
who embrace the rule of law, whether advocates or opponents of the modern
administrative state, should support that step.

November 2018

No. 2