Sunstein and Vermeule on Auer Deference

The potential demise of so-called Auer or Seminole Rock deference has been discussed on the blog before (see here and here). The Supreme Court of the United States is now poised to consider interring the doctrine. However, in “The Unbearable Rightness of Auer“, Cass Sunstein and Adrian Vermeule encourage the Supreme Court to leave well enough alone. Here is the abstract:

For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct.  In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call “the sign fallacy.”
In general, they say, “Where Congress has not been clear, deference to the agency, in the face of genuine ambiguity, is the best instruction to attribute to it” (p. 8). Although Sunstein and Vermeule recognize the force (in the abstract) of the argument that Auer deference incentivizes agencies to issue ambiguous or vague regulations that the agencies can later interpret, thereby surreptitiously obtaining greater deference from the courts, they note that a majority of agency drafters do not take Auer deference into account in their work. Moreover:
There is a further point, which counts as a fundamental objection to the claim that Auer creates perverse incentives. In an important way, Auer actually incentivizes clarity, and eliminating it would eliminate that incentive. If an agency leaves a regulation ambiguous, it cannot be certain that a subsequent interpretation will be made by an administration with the same or similar values. For agencies, ambiguities are a threat at least as much as they are an opportunity. One administration might well want to ensure that its successor will not be allowed, with the aid of Auer, to shift from a prior position. We do not press this point, because doing so would commit the sign fallacy (with a different sign). Our only suggestion is that those who think Auer is wrong, because of the incentive problem, might have the sign wrong. There are multiple incentives cutting in multiple directions, and their net magnitude is at best unclear (p. 9).
Indeed, “one of the primary functions of such interpretations has been to confine agency authority rather than to expand it, often in response to questions and concerns from the regulated community” (p. 13).
To the argument that Auer deference offends the separation of powers by producing “a constitutionally suspect combination of the power to make law with the power to interpret law” Sunstein and Vermeule offer a robust response:
…the analytic point is that there is a severe mismatch between the sweeping constitutional critique, on the one hand, and on the other the exceedingly narrow context of Auer, where agencies are merely sorting out ambiguities in their own rules. If correct, the critique actually amounts to an indictment not merely of Auer, which seems at most a minor detail, but much of the contemporary administrative state, and its proponents should have the candor to argue for it on those terms. Perhaps those proponents, or some of them, believe that the constitutionality of agencies that combine law-making with law-interpretation is too entrenched to deserve rethinking, while Auer is fair game. But is it really a good or even intelligible use of the separation-of-powers principle to insist that judges must, entirely on their own, interpret the meaning of words like “diagnosis” or “diaries”? Does constitutional liberty depend on an affirmative answer? (p. 10)
The paper is available here.


This content has been updated on February 3, 2016 at 12:22.