Administrative Law

Auer Deference Post-Kisor

The Supreme Court reined in Auer deference. Will lower court get the message?


Auer deference, under which courts are required to defer to reasonable agency interpretations of their own ambiguous regulations, has long been one of the more problematic doctrines within administrative law. This past term, in Kisor v. Wilkie, the Court was asked to overturn Auer, but only four justices were willing to take that step.

The Supreme Court may not have been willing to eliminate Auer deference in Kisor , but it certainly attempted to bring it to heel. Justice Kagan's opinion for the Court claimed to uphold Auer v. Robbins, yet her opinion for the Court emphasized the limits on Auer deference, as it also "compile[d] and further develop[ed]" them. As reformulated in Kisor, Auer deference now requires a context-dependent, five-step analysis in order to determine whether a court must defer to an agency's interpretation of its own regulation.

As Justice Kagan's opinion for the Court makes explicit, Auer deference has a limited role to play in administrative law, and should only be applied in a limited set of circumstances. For starters, the question of Auer deference may only arise if the regulation at issue is truly ambiguous -- not merely complicated or technical, but truly ambiguous. As Justice Kagan explained, "a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read." The reviewing court must utilize all of the traditional tools of textual interpretation and can only even consider deference upon concluding the regulation at issue contains "genuine ambiguity" as to the question at hand.

But ambiguity is not enough. The agency's interpretation must constitute a reasonable interpretation of the relevant text, represent the agency's official and authoritative interpretation, be with within the agency's expertise, and reflect the agency's considered judgement with due regard for notice and reliance interests. Auer deference remains to be used "where it applies," Justice Kagan explained, but "it often doesn't."

The upshot of Kisor is that reviewing courts should rely upon Auer deference to resolve cases less often than they have to date. Indeed, this was the result in Kisor itself, where every justice agreed the Federal Circuad been too quick to conclude the applicable VA regulation was ambiguous and that the VA's interpretation merited deference.

The Supreme Court has given us a more "tame" and less "menacing" Auer doctrine.  The question is whether lower courts will get the message. For while Justice Kagan's opinion is clear, the headline result is still that Auer v. Robbins was not overturned and Auer deference is still with us. Some courts make take this as a reason to continue on as before, particularly when the alternative is assuming responsibility for the heavy interpretative lifting.

One of the first courts to consider how Kisor modifies the application of Auer was the Oregon Supreme Court -- and the justices split over the question. In Eastern Oregon Mining Association v. Department of Environmental Quality, the court considered the application of the Clean Water Act's permitting requirements to suction dredge mining. A majority of the court concluded Kisor supported its conclusion that the state DEQ's permit was valid under the CWA and applicable regulations.

The court was not unanimous. One justice dissented, arguing that Kisor required the court to look more closely before deferring to a federal agency's interpretation of its own rules. Whether or not the majority reached the correct conclusion on the ultimate question, the dissent makes a persuasive case that the majority failed to heed Justice Kagan's admonition not to rush to deference.

Perhaps the Oregon Supreme Court reached the right bottom line, and perhaps this is a one off. Kisor has scarcely been on the books for a month, so few courts have dug into it. Yet it will be interesting to see whether lower courts heed the message that Auer deference has a far more limited role to play in a post-Kisor world.

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  1. I find the state of Auer/Chevron deference pretty confusing. It seems like these doctrines are entirely a matter of a kind of (formal presumption of) congressional intent. Did congress intend to give agencies the power to resolve ambiguities in their statutes or their own regulations?

    But in that case why hasn't congress just gone in and started clarifying what level of deference it wants given to what aspects of what laws. Congress has known for a long time that the court is shifting it's attitude on these issues so why haven't they just passed a law eliminating this deference or enshrining it...or indicating where it applies in a piecemeal fashion?

    I hear liberals assert all the time that dismantling Auer/Chevron is a conservative goal but if that's true why didn't they just pass a law when they had all three branches declaring that no such deference should be given?

    1. Congress intended to pass the decision-making-buck. Allowing them to take credit for successes, but blame agency implementations/interpretations when there's a mistake or even just bad PR.

  2. Deference with ambiguity should go to the citizens, not the government.

    If a judge finds something ambiguous, especially with agency interpretations & not the actual laws or regulations, then how can proper notice have been achieved?

    1. I strongly agree - so long as the case is between the government and a citizen.

      That rule of thumb breaks down when two citizens are arguing and citing to the ambiguous rule. I suspect that the former case is by far the more common case but in the latter case, I do think there is some small justification for deference to the agency.

      1. Except the agency wouldn't be a party to the case in the latter situation, so you don't particularly have an agency interpretation to defer to.

  3. “[M]ay only arise if the regulation at issue is truly ambiguous—not merely complicated or technical, but truly ambiguous."

    Arguably (if not certainly) mostly in the eye of the beholder, consequently generating still more litigation.

  4. I'm not sure there's much to read into the Oregon Supreme Court's opinion. Politics drive many state supreme court opinions.

    As to the federal courts, the district court try to not be reversed--a reasonable approach, but one that often causes them to be more conservative (judicially, not politically) in applying new caselaw. However, IMO, many Trump-appointed federal district judges will not only be open to doing "heavy interpretative lifting," but believe that is precisely why they were appointed. That may, in turn, drive the approach adopted by the federal court of appeals.

  5. Is this Auer deference anything like the way the Conspirators can't find their keyboards when it comes to the Trump administration's displays of raw bigotry?

    Silence and cowardice are often related.

  6. Is Auer deference binding on state courts? Analogously (?), I would have thought (but maybe wrongly) that, while state courts are bound by the SCOTUS substantive interpretation of federal laws, they are not required when construing a law in the first instance, even a federal law, to adopt the precise toolkit of interpretation that SCOTUS would use, e.g., to give as much, but no more, weight to legislative history as SCOTUS would, and to give each of the many canons of construction the precise same scope and weight as SCOTUS even if state precedents on statutory interpretation are somewhat different.

    1. That's right. State courts have their own canons of interpretation and deference. Wisconsin's courts, for example, just abandoned their canons of deference to agency interpretations of statutes.

      1. Thanks! I meant, but perhaps didn't quite adequately express, what strikes me a more difficult point than the one you might be addressing. I take it as a given that in interpreting state law the state courts can -- within very broad limits of what counts as due process -- use whatever methods of interpretation they decide upon. Maybe that's all you mean to say. But when they interpret federal law, may they still use their own rules of interpretation? Were you addressing that issue as well? My sense is that maybe they can use state methods of interpretation, even though on the substance of the federal statute's meaning, they would be bound by a SCOTUS ruling, if there is one. And, on Auer more specifically, what if, as in the Oregon case cited in the post, they are interpreting a federal regulation about which the federal agency has opined?

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