The Simple Solution to Auer Problem

Abstract

This Article provides empirical answers to several pressing questions in the ongoing debate over the Auer doctrine — i.e., controlling judicial deference to an agency’s interpretation of its own regulations. The study is based on an original dataset of variables attendant to 1,118 agency interpretations across 1,048 published U.S. Courts of Appeals opinions. The dataset includes all federal circuit court decisions that invoked Auer or related cases from 1993 to 2013. In order to allow for a comparative analysis, the author employed simple random sampling to create samples representative of populations of U.S. Courts of Appeals opinions that invoked the other two primary deference principles: controlling Chevron deference to an agency’s interpretation of its own enabling statutes and non-controlling Skidmore respect. For each interpretation, the author recorded identifying information and whether the government’s interpretation was accepted by the court. Also, each interpretation was put into one of twelve categories of administrative procedure. The results of this study point to the following notable conclusions. First, the data indicate that Auer deference has narrowed in U.S. Courts of Appeals over the last decade, in the wake of a number of Supreme Court opinions that were critical of the doctrine. Second, U.S. Courts of Appeals give Auer deference to interpretations falling across the continuum of administrative procedure in a surprisingly balanced manner. Overall, federal circuit courts applied Auer deference to virtually the same number of interpretations resulting from administrative processes that carry the force and effect of law as they applied the doctrine to processes that do not. Finally, the data allow for a simple modeling of the administrative burden of reforming Auer deference. Under conservative assumptions, implementing an Auer Step Zero would lead to an estimated difference in the government’s win rate amounting to a single interpretation per U.S. Court of Appeals every eight years across 66 administrative agencies identified in the study. These results belie claims that disrupting the doctrine would lead to chaos in regulatory agencies and federal courts.