Auer Deference Inside the Regulatory State: Some Preliminary Findings

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Chris Walker

Yesterday we had three terrific posts on whether Auer deference actually makes a difference in the federal courts of appeals. In other words, do agencies win more when courts apply Auer deference (also known as Seminole Rock deference) to give an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the regulation”—as opposed to de novo review or under the less-deferential Skidmore standard.


But what about Auer’s effects within the agency? This is an important empirical question in light of one of the twin pillars of Justice Scalia’s attack on Auer. In addition to arguing that Auer raises constitutional concerns by combining legislative and executive functions in one government actor—here, typically an unelected bureaucrat (with perhaps some presidential oversight)—he focused on the perverse agency incentives that Auer may produce. Justice Scalia detailed this agency incentives argument in Talk America:

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