Supreme Court

Justice Department Asks Court to Narrow Auer Deference

In a just-filed brief, the Trump Administration asks Supreme Court to reduce the degree of deference government agencies receive.

|The Volokh Conspiracy |

Auer deference (also known as Seminole Rock deference) is one of the more controversial doctrines in adminsitrative law. This doctrine provides that where a federal regulation is ambiguous, the promulgating agency's interpretation of that regulation shoud receive "controlling weight." As articulated by Justice Scalia in Auer v. Robbins, this holds without regard for how or when the agenc articulated its interpretation, provided the reviewing court may be assured that the interpretation offered reflects the agency's official position.

Auer deference may sound like an unobjectionable way to resolve regulatory ambiguity. In practice, however, Auer deference enables agencies to evade a range of administrative law norms designed to ensure notice and accontability, and facilitates agency aggrandizement of their own authority. I review some of the problems with Auer in this brief symposium article, "Auer Evasions."

In recent years, several justices have expressed their discomfort with Auer, including Justice Scalia, who expressed regrets about the decision before his death. Next month, the Supreme Court will hear oral argument in Kisor v. Wilkie, in which the Court will expressly consider whether to overturn Auer. As you might expect, I think it should, for reasons explained in the above-cited article, this SCOTUSBlog essay, and my amicus brief with Michael McConnell, Richard Epstein, the Cato Institute, and Cause of Action.

Yesterday, the Solicitor General filed its brief in the case, defending the federal agency decision at issue in Kisor (the rejection of a veterans' disability benefit claim by the Department of Veterans' Affairs). While the brief defends the VA, it takes the surprising (yet very welcome) steps of acknowledging many of Auer's deficiencies and calling on the Court to narrow Auer deference. The primary reason the brief gives for not overturning Auer completely is stare decisis.

Here is an excerpt from the government's brief's argument summary:

The doctrine of judicial deference to agency interpretations of ambiguous regulations announced in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and applied in Auer v. Robbins, 519 U.S. 452 (1997), should be clarified and narrowed.

A. The doctrine raises significant concerns. First, its basis is unclear. It is not well grounded historically; this Court has not articulated a consistent rationale for it; and it is more difficult to justify on the basis of implicit congressional intent than Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Second, Seminole Rock deference is in tension with the APA's distinction between legislative and interpretive rules. Interpretive rules, unlike legislative rules, do not carry the force and effect of law and are exempt from notice-and-comment procedures. When a reviewing court gives controlling weight to an interpretive rule under Seminole Rock, it arguably treats the interpretive rule as though it were a legislative rule. Seminole Rock deference can also cause practical hardship to regulated parties.

B. In light of these substantial concerns, the Court should impose and reinforce significant limits on Seminole Rock deference. Seminole Rock deference is inappropriate if, after applying all the traditional tools of construction, a reviewing court determines that the agency's interpretation is unreasonable—i.e., not within the range of reasonable readings left open by a genuine ambiguity in the regulation. A more searching application of that inquiry would obviate any occasion for Seminole Rock deference in many cases. And even when that rigorous predicate is met, a reviewing court should defer to the agency's interpretation only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency's prior views; rests on the agency's expertise; and represents the agency's considered view, as distinct from the views of mere field officials or other low-level employees.

As readers might suspect, I think Auer's problems justify its complete reversal, but it is nonetheless welcome to see the federal government acknowledge these problems and show a willingness to narrow a doctrine the inevitably works to the advantage of the government.

For more on Kisor, see this SCOTUSBlog symposium. For more on Auer and Seminole Rock, see this Notice & Comment blog symposium.

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98 responses to “Justice Department Asks Court to Narrow Auer Deference

  1. Worst. Dictator. Ever.

    1. Easiest to buy off libertarians ever.

      1. Seriously, should libertarians not approve? Or maybe fail to notice that no prior administration took this step?

        1. It’s not that you just approve of this push, it’s that your comment argues you should be cool with whatever else the man does because he allowed this action.

          1. Trump can’t be a dictator because he does some judiciary stuff I like. Never his personal hostility to the DoJ and any and all judges that rule against him.

            1. Only a complete and utter moron would argue that personal hostility, and not official actions, is what makes a dictator a dictator. And yet here we are.

            2. He can’t be a dictator because he doesn’t dictate. Literally, the guy does not act like a dictator! He complies with court orders, for instance. In the case of the emergency declaration, he’s got a statutory basis for doing it, he didn’t just pull it out of his ass.

              He ordered that FISA court warrant declassified, his own DOJ refused. How many people were hung as a result?

              The guy does not act remotely like a dictator. Worst Literally Hitler ever.

              1. But he’s mean to the Press. And dictators are mean to the Press. Ergo Trump is a dictator.

                I mean, seriously. This is explained to us by the Press all the time, I’m surprised you haven’t gotten it yet.

                And a similar thing: Trump lies. Trump says that the Press lies. Ergo the press doesn’t lie! Basic logic, man.

                1. We’ve gone around about Trump’s other behavior a bunch in the past, and we shall in the future.

                  My point is merely that using this (and judges) as evidence Trump isn’t a dictator is silly, but also what a bunch seem to think.

                  1. Sarcastro, “dictators” dictate. We’re pointing out that he doesn’t dictate, and you respond by bringing up stuff that isn’t relevant to whether he’s a “dictator”.

                    Do you actually not know what the word “dictator” means? You maybe think it means “meanie”?

                    1. “”dictators” dictate. We’re pointing out that he doesn’t dictate”

                      It’s not that he doesn’t want to, it’s that he’s bad at it.

                    2. Well, sure, who knows what evil lurks in the hearts of men? I’m not the Shadow, and I suspect you aren’t, either.

                      But if he’s trying to be a dictator, he’s sure going about it the wrong way.

                  2. “My point is merely that using this (and judges) as evidence Trump isn’t a dictator is silly…”

                    I guess you’re right, Sarcastro. Sure, Trump is arguing that judges shouldn’t defer to the executive branch’s interpretation of regulations, but he doesn’t need them to. He can simply cow judges into bending to his will by threatening to call them a “so-called judge”! My God, he is a dictator!

                  3. “My point is merely that using this (and judges) as evidence Trump isn’t a dictator is silly,”

                    Which is a truly stupid point. Of course this is evidence. It’s not conclusive evidence, but it’s evidence. And it’s certainly much better evidence than the personal hostility you so laughably cite.

                  4. Sarcastro, it would be easier of you could point to areas where trump is actually a dictator. But we know you’ll run from this request like you always do.

            3. “Never his personal hostility to the DoJ and any and all judges that rule against him.”

              I’m not a political scientist, but my understanding is that generally the thing people find objectionable about dictators is not the personal hostility towards independent judges and the like, but more of an official hostile involving sanctions, imprisonment, torture, and murder of pesky judges and other dissidents, and said dissidents’ families.

              But for you it’s the name calling. “So-called judge…” etc. Well, I guess everybody sees things differently.

              1. How low a bar you set. ‘So long as Trump isn’t actively using death squads, he’s not a dictator!’

                So far Trump has not been able to act on his dictatorial desires, either through institutional pushback or his own staff and Party managing him via waiving him off/distracting him.

                But his twitter is not the sign of a man committed to the rule of law and legitimacy of dissent.

                And this emergency declaration is not a good trend.

                But yeah, his DoJ pushes for the Federalist Society’s vision so how bad could he be?

                1. “How low a bar you set. ‘So long as Trump isn’t actively using death squads, he’s not a dictator!'”

                  Nobody has set that as a standard, you dishonest piece of shit.

                2. “So far Trump has not been able to act on his dictatorial desires, either through institutional pushback or his own staff and Party managing him via waiving him off/distracting him.”

                  AKA checks and balances. Of course, no other president has had “dictatorial desires” and has kept themselves in check through sheer virtue, without the need for such checks.

                  “And this emergency declaration is not a good trend.”

                  This emergency declaration seems to be a fairly routine abuse of the NEA. Presidents shouldn’t abuse the NEA, but it’s hardly out of the ordinary. You get that all this hand-wringing is just politics, right? And I say this as somebody who opposes the wall even if properly funded.

                  1. Dont tell sarcastro about Obama’s comments regarding how much easier it is to rule in China.

                    Sarcastro, you’re an idiot.

                    1. It is easier to rule in China, though. Doesn’t mean you want to do it.

                  2. seems to be a fairly routine abuse of the NEA

                    Really? Ordinary? This is different in kind, being domestic, in magnitude, being a lot more money than previous declarations, and in circumstance, not being due to some overseas event but rather domestic political frustration.

                    Yeah, this crisis has had it’s foundations laid since the 1970s, but I’m not taking refuge behind political cynicism to avoid being concerned about this latest test of our government’s structure, and neither should you.

                3. Err, you mean the complete mutiny and slow motion coup-d-etat being perpetrated by the Deep State?

                  And dissent from MAGA makes one an anti-patriot. 44*, when faced with opposition, didn’t merely shrug his shoulders, he said things like, “If they bring a knife to the fight, we bring a gun.” Of course, *that* was OK when 44* said violent, divisive things.

                  1. anti-patriot

                    Normal culture stuff happening here.

                4. Yeah, so long as he’s not acting like a dictator, he’s not a dictator. How complicated is that?

                  Obviously I don’t know what’s going on inside his head, but going by his external behavior, no, he’s not demonstrating any dictatorial tendencies. In fact, less so than most recent administrations.

                  1. Well I’m glad you’ve moved off from somehow this policy disproving any dictatorness, Brett.

                    But emergency declaration, firing people to avoid oversight, whipping up nationalist populism, calling the press the enemy of the people…Trump is an authoritarian ass, and if not a dictator, it’s not for lack of wanting.

                    1. There’s a huge, huge gulf between “authoritarian”, (Which is to say, virtually everyone in politics.) and “dictator”. That might even be why we have the word “dictator”, to denote those who go out of the normal bounds of being an authoritarian.

                      The emergency declaration is a routine abuse of power that Congress shouldn’t have given Presidents in the first place, but as Congress did, it has firm statutory grounding. UNLIKE several actions I could name by previous administrations…

                      Nobody got fired to avoid oversight. That’s just a remarkably stupid talking point. Literally, the oversight continued without the slightest interruption.

                      “Whipping up nationalist populism…” Trying to rule out of bounds something that’s well within the normal range of American political opinion?

                      “calling the press the enemy of the people”; Yeah, that’s an exaggeration, at worst they’re only an enemy of half the people.

                    2. “Well I’m glad you’ve moved off from somehow this policy disproving any dictatorness, Brett.”

                      Brett Bellmore didn’t change his position you dishonest piece of shit.

                    3. If you really can’t comment without being personally insulting, why don’t not comment. Your insults aren’t even good on an entertainment level.

                    4. He has developed some weird thing for me. I just ignore him how.

                    5. “If you really can’t comment without being personally insulting, why don’t not comment.”

                      Because Sarcastr0 is a dishonest piece of shit that deserves to be insulted.

                      “Your insults aren’t even good on an entertainment level.”

                      They aren’t trying to be.

            4. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
              >>>>>>>>>> http://www.payshd.com

          2. “it’s that your comment argues you should be cool with whatever else the man does because he allowed this action.”

            Worst reading comprehension skills ever!

            1. ‘Trump can’t be a dictator – look at what his DoJ is doing in this area!’ is indeed a pretty bad argument.

              1. It’s a lot better than “Trump must be a dictator, because he’s not acting like one, but my mad mind reading skilz reveal him to be one!”

                1. Backpedaling from comment noted.

                  I’ve stated my issue with your comment a number of times, and explicitly said we can go around about Trump’s authoritarian streak elsewhere.

                  That you are eager to take it up again here is partially my fault, being unable to resist such a low and slow pitch, but also rather a distraction from the point that the libertarian enthusiasm for Trump merely due to Federalist Society-izing the judiciary (as exemplified in your OP) is myopic.

                  1. No, the libertarian enthusiasm for Trump isn’t limited to his selecting Federalist society approved judges, it’s also based on actions like the one DISCUSSED IN THE OP.

                    I get that you don’t like him, but operationally, he’s a heck of a lot more libertarian than most Presidents. And, yeah, that’s an indictment of American Presidents, but it’s still true, and we’d be fools not to notice.

                    1. Let’s not get carried away. Morons like Sarcastr0 with their “Trump is a secret dictator” are obviously delusional, but Trump is not a particularly libertarian president even by the appalling low standards set by recent presidents.

                    2. Except, you know, for the efforts to roll back the regulatory state, his complying with even the most dubious injunctions, and good judicial nominations.

                      Yes, he IS particularly libertarian, by the appallingly low standard set by recent Presidents, if no on some absolute scale.

                    3. operationally, he’s a heck of a lot more libertarian than most Presidents

                      As I said, judicial myopia. You go defending his growth of government everywhere else and then turn on a dime to call him libertarian.

                      Trump is about as libertarian as you are, I’ll give you both that.

                    4. “As I said, judicial myopia. You go defending his growth of government everywhere else and then turn on a dime to call him libertarian.”

                      Again, can you not understand what you read or do you understand and just pretend people write whatever is convenient?. This very post is about, in part, Trump’s administration asking to shrink the power of the executive branch. Brett Bellmore also specifically cited the roll-back of the regulatory state in the very comment you are responding to. Dishonest, or stupid? The people deserve the truth.

                    5. “Except, you know, for the efforts to roll back the regulatory state,”

                      That has indeed been welcome. Those aren’t the only things he’s done, however, and many of the other things he’s done are decidedly non-libertarian. Like the tariffs. And the bullshit emergency declaration to build the wall. And threatening to use eminent domain to build the wall (I agree it would be constitutional, but that doesn’t make it libertarian).

                      “his complying with even the most dubious injunctions,”

                      That’s evidence against morons like Sarcastr0 that want to pretend he’s a secret dictator, not evidence of libertarianism.

                      “and good judicial nominations.”

                      They have been good, for the most part, and certainly better than those Clinton would have likely appointed, but that does not make them libertarian.

                    6. Yeah, I wouldn’t claim that he’s a libertarian on any absolute scale, just that he’s more of a libertarian than many recent Presidents.

                      Somewhat of a mixed bag, but no question there’s stuff there for a libertarian to approve of.

                    7. No, completely a mixed bag, which makes him a lot like all of the other presidents. Even Obama finally got around to supporting gay marriage once the polls turned favorable, something the Libertarian Party has endorsed since 1976.

  2. Curious. In contract law isn’t it generally the rule that the deference goes against the party that created the ambiguity. If so, why do regulators get deference?

    1. Well, duh: Because they’re the government, and so are the judiciary.

      1. Yes, but the contract rule applies in government contracts as well.

      2. We need a close analogy to the rule of lenity here: any ambiguity needs to be resolved against the government.

        1. Hold on a second there. How many bureaucrats writing how many pages of regs do we want?

          1. Zero. Fines and jail time should only be applied to violating words from Congress, not unelected regulators tangentially and only in theory monitored by Congress.

            Neither “removing the politics from it” nor “there are too many regulations to vote on” are actual selling points.

  3. It seems like there are a lot of fixes that can be done on the periphery of Auer to to avoid the evasions explained by JHA in the article. As a matter of prudence, it seems like the Court ought (as the SG suggests) to try those incremental fixes before throwing out the entire doctrine and replacing it anew, not least because the latter involves a decade of uncertainty while the lower courts sort it out.

    For instance, the DC view coupling Auer deference to finality seems like a sensible point — an agency only gets deference to an interpretation when made in a controlling and final manner, and crucially, this makes it reviewable.

    Another good point the SG makes in his brief is the consistency one — that an agency gets Auer only to interpretations that are binding and consistent. This prevents the shuffling around of competing interpretations and gives deference only in response to commitments.

    1. How is your position superior to just jettisoning Auer deference altogether? The objective, in a free society, should be to wave bye-bye to the administrative state.

      In a free society, there is no administrative state.

      In a society which claims it is free and yet has an administrative state, it abandons the administrative state if it truly wants to be free.

      If a society which aspires to be free, it does not countenance an administrative state.

      If a society falsely claims that it was conceived in liberty, it tends to create an administrative state.

      1. No doubt in a free society money, sex partners, and babies all grow on trees. But simply ordering these things to appear won’t bring them into being. Better to admit that no society is truly free – every society is limited by the problems and limitations people have to deal with.

        Every modern society has had an administrative bureaucracy. One can limit the bureaucracy, impose rules on it, review its decisions. But to pretend that it can simply be abolished by wave of a magic wand and a modern society still function is to pretend plain and simple.

  4. I’m not sure this article explains the problem well.
    What I’m getting is the idea that, since an agency wrote the regulation (whatever regulation it is), they best understand what the purpose of that regulation is, and if they drafted it poorly, so as to be ambiguous, they are the ones who understand what the reg was SUPPOSED to mean, and so the court is deferring to that interpretation of the regulation (again, whatever regulation it is.)
    But, I don’t see that as a problem. What am I missing? How and where is this “power” being abused? If the agency that wrote the regulation isn’t the best source to determine what a regulation was supposed to mean, what is?

    1. The abuse comes when the agency either changes its mind, or applies a regulation with a post-hoc explanation and rationalization for its enforcement positions. In both cases, the people and companies being regulated do not have notice that what they were originally doing was wrong. But because of the regulatory flexibility that Auer provides, the people/companies can be fined after the fact.

    2. Yeah, I think that a big part of the problem is that Auer Deference can lead to Calvinball.

    3. The two arguments I’m seeing is

      1) Assumptions of good faith and professionalism are misplaced here.
      2) This fails to disincentive consistency in agency policies.

      The first is just a bunch of libertarians trying to reify their philosophy as fact and policy.
      The second is a good point – if backed up with data, not just anecdotes and more general hostility.

      1. Sarcastro :1) Assumptions of good faith and professionalism are misplaced here.

        …The first is just a bunch of libertarians trying to reify their philosophy as fact and policy.

        Not only has the entire field of public choice theory passed you by, but you seem to have concluded that the preferred answer to “quis custodiet ipsos custodes” is “don’t worry, we can trust ’em.”

        (2) This fails to disincentive consistency in agency policies.

        inconsistency ?

        1. The way you do this is to set up people and incentives to watch the watchmen. It is not to assume everyone in the government is a partisan, except for whichever institution you’re championing today.

          1. It is core to the American design of government to presume all those seeking power are potential or actual scumbags twisting government power to their own advantage.

            1. Reasoning behind that design imperative? All of human history.

              1. The deontological: an administrative state is incompatible with a free society and the NAP

                The practical: an administrative state distorts markets, creates and exacerbates spectacular misallocation of resources, expands the girths of bureaucracies, incites corruption, and rewards crony-capitalists and political economy.

                1. Markets are the optimal in all things, and thus all of society should be aligned to serve them, not vice-versa?

                  You tellingly assume this, whereas a free society might best be attained by keeping markets in an adversarial position with institutions to channel their efficiency towards goals that align with the values of the society, even as markets curb the excesses of said institutions.

              2. Not post-Civil War, Krayt. And not pre, to see the Federalist Papers think about it – they talk mostly of incentives, not of paranoia.

                And apparently judges are cool, at least in this particular issue.

                Your gauzy narrative doesn’t stand up in the real world.

    4. Agree with JP.

      Say the Court does narrow the scope, what then?

      An agency makes a rule; somebody doesn’t like the rule.

      OK, what then?

      1. “An agency makes a rule; somebody doesn’t like the rule.”

        That’s not this issue.

        The agency makes a rule; only the agency knows what the rule means. Two years later, the agency says, “The rule means that you can’t do what you’ve been doing for the past two years.”

        1. And this is worse that the judiciary saying “the rules means that you can’t do what you’ve been doing for the past two years.”?

          1. Because the same people aren’t making and interpreting the rules and prosecuting based on their decision. Courts don’t make the rules, decide the rules mean something else after you’ve done something, and prosecute based on that.

            1. “Courts don’t make the rules, decide the rules mean something else after you’ve done something, and prosecute based on that.”

              Unless or until you remember that prosecutors are officers of the court, that is.

              1. “Officer of the court” and “court” aren’t the same thing. Defense attorneys are officers of the court as well. That just means they have a duty of candor to the tribunal. They’re certainly not a member of the judiciary.

      2. The same thing that happens today when somebody doesn’t like the rule – they sue over it. And just as today, the courts collect evidence and decide if the regulation was made in accordance with the rules (if not, it’s invalid). Also just like today, they decide if the regulation was ambiguous. If no, the case is over. If yes, under the current rules, the agency has an almost unlimited license to rewrite the rule on the fly.

        Under the rules sought by the plaintiffs (and anyone else with two brain cells), an ambiguous=yes answer would return one of two results – either a) the rule is invalid and it goes back to the agency to do it over properly or b) the ambiguity is resolved against the agency. Deference to their ad hoc interpretations of their own sloppy work is neither necessary nor healthful to the functioning of good government.

        1. “the agency has an almost unlimited license to rewrite the rule on the fly.”

          And… then it’s locked down. Just like it would have been if they’d written the rule unambiguously in the first place. Plus, of course, one of the things they look for is whether or not the there’s a history of whether or not the rule’s supplemental definition is actually the position of the agency.

          ” Deference to their ad hoc interpretations of their own sloppy work is neither necessary nor healthful to the functioning of good government.”

          Meh. There’s two sources of ambiguity… poorly drafted in the first place, in which case your criticism is absolutely valid, but another source of ambiguity is change over time… new things being invented. So, for example, is Internet access an “information service” as contemplated in the Telecommunications Act of 1932? How about the amended act of 1996?

          1. When is it locked down? When the executive changes hands and new interpretations are offered? It’s never locked down.

            1. “When is it locked down?”
              The first time it’s articulated in court.

              “When the executive changes hands and new interpretations are offered?”
              The President lacks the authority to overturn court precedent.

          2. No, James, it’s not “locked down”. In fact, the agencies repeatedly and publicly stated their opinion that they had the right to change their interpretation of the rule at will. They said so in their own court filings in this case. They’ve said the same in other cases as well. And in multiple other cases, courts have said that explicitly that Auer deference requires the agencies to be given that freedom.

            Re: the ambiguity due to changing circumstances – That sounds like a perfect reason to send the regulation back for a proper revision with full notice and comment. Allowing an agency the ability to change the regulation any time they unilaterally decide that “circumstances have changed” and allowing courts no oversight of that decision is simply insane.

            1. ” In fact, the agencies repeatedly and publicly stated their opinion that they had the right to change their interpretation of the rule at will.”

              The agencies have approximately 0 power to change court opinions. Once it’s been litigated, the relevant authority is not the agency’s opinion, it is the court opinion.

              ” That sounds like a perfect reason to send the regulation back for a proper revision with full notice and comment.”

              OK. Maybe even have Congress go back and rewrite the legislation, if they want to give direction. But if that hasn’t happened…

    5. The problem is agencies passing vague regulations that the average citizen is not able to comment on. This violates the regulatory procedures as you cant in good faith know what the regulation means.

      The other issue is agencies searching for vagueness in order to pass new regulations through interpretation and avoiding the rule making process all together.

      1. “The other issue is agencies searching for vagueness in order to pass new regulations through interpretation and avoiding the rule making process all together.”

        Then don’t give them the power in the first place.

  5. If there is ambiguity the regulation should go back through the legislative process for clarification, not to unelected bureaucrats. The regulation should be deemed on-hold until it is cleared up.

    1. Yeah sure….Congress is going to review every-single-regulation that someone disagrees with.

      Congress can’t even pass major funding bills on time.

      1. Sounds like a feature, not a bug.

        1. Given the fact that we already have way, way, way, way too much law …

          1. See? libertatrian wankery.

            1. From your point of view, the problem is who wields the power. From the libertarian point of view, it is the existence of the power itself.

              I wouldn’t hesitate to guess which position is wanking in the wind, crossing one’s fingers against millenia of misuse.

              1. ” From the libertarian point of view, it is the existence of the power itself.”

                The power exists. Whining that it exists causes approximately 0.00% change in its existence.

              2. From your point of view, the problem is who wields the power

                No, from my point of view it’s how the power is wielded.

                As has been noted below, it’s not like devolving everything to markets doesn’t create its own tyranny.

            2. Yes. We should accept regulations that are contradictory but we should be beholden to both. We should ignore the regulatory rule books that would take a lifetime to read.

              You’re an idiot sarcastro.

              1. First, prove that contradictory regulations are a sufficient problem to warrant this cure of putting agency adjudications under judiciary receivership.

              1. …that article isn’t about administrative law, KHP54…I won’t argue against criminal justice reform, but I don’t know what it has to do with Auer deference.

            3. I’ll quote myself, given that the comment I’m quoting is the root of this particular subthread:

              Given the fact that we already have way, way, way, way too much law …

              1. It’s not though – you were responding to someone talking about regulatory ambiguity, so criminal law is nonresponsive.

                Because I’ll get right with you on too many criminal laws, too much overcharging, too much jail time, all that stuff. Doesn’t mean I want some weird plan to tie our government’s hands with bureaucratic administrative requirements.

                1. Had you actually read the article, you would know that, indeed, administrative law is part of the problem with overcriminalization.

                  “n addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.”

                  1. jph, an article about overcriminalization generally is not responsive to the OP, which I will reprint for your convenience:
                    If there is ambiguity the regulation should go back through the legislative process for clarification, not to unelected bureaucrats. The regulation should be deemed on-hold until it is cleared up.

                    Your pedantry don’t play here.

  6. So when do we deal with Chevron?

    1. Hey, at least we have Sackett so they’ve stopped expanding the power of the administrative state. Baby steps, man, baby steps.

    2. I think it’s entirely reasonable to accept Chevron both as a normative process and a matter of being correct law while opposed to Auer. On the normative side things, Chevron promotes clarity in the application of the law while Auer undercuts it. On the legal side of things, there’s a couple different angles. The first is a matter of Congressional intent: The fact that Congress only outlined broad strokes and empowered an agency filled with those with expertise to fill in the details demonstrates that they trusted them to fill in the details. There’s also the argument of legislative acquiescence. It’s very easy to overturn Chevron if they did not want them to have deference or to remove that deference by removing ambiguity. Auer is different. Because Congress isn’t making the regulations themselves, there’s less reason to think they wanted the courts to defer to after the fact interpretations of the regulations they didn’t make. It’s also harder to overturn them because they aren’t overturning a statute or even a regulation. The only thing being overturned is an after the fact interpretation of a regulation that was made.

  7. It’s not just *your* deference, it’s *Auer* deference.

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