Much has been made of how the US Supreme Court’s decision in Loper Bright Enterprises v. Raimondo will assert judicial authority over the administrative state. But less has been made of what Loper Bright means for the other deference doctrine: Auer deference.
In Loper Bright, a six-justice majority found that agency deference provided for 40 years under Chevron v. NRDC “cannot be reconciled” with the Administrative Procedure Act. According to the majority, the act requires the judiciary exercise its “independent judgment” of a statute’s meaning without deferring to an agency’s reading.
Chevron provided deference when an agency was interpreting statutes. Auer v. Robbins provides deference when an agency is interpreting its own regulations. The prevailing wisdom for years was that Auer deference was more susceptible to challenge because it allows administrative agencies to write and interpret their own law, rather than just the law Congress set forth.
The Loper Bright majority’s justifications for overruling Chevron—the judiciary’s preeminence in interpreting legal texts, the need for checks on agency action, the unworkability of deferring to agencies—apply with particular force to undermine Auer deference.
And yet, before Loper Bright, Auer deference seemed safe. Just five years ago, Auer deference was on the chopping block in Kisor v. Wilkie. A five-justice majority preserved Auer deference but limited its application. In a concurring opinion, Chief Justice John Roberts agreed that overruling Auer deference was “not warranted.”
Five years later, Roberts wrote the majority opinion in Loper Bright ending Chevron deference. How is it possible that Auer deference has (at least nominally) survived while Chevron hasn’t?
Justice Elena Kagan seemed just as puzzled. In a withering dissent in Loper Bright, she cited Kisor six times, noting the Kisor court had required a “particularly special justification” for overruling long settled and relied-upon precedent. In her view, “the majority has nothing that would qualify.”
But Roberts, too, cited Kisor four times in the Loper Bright majority opinion. The frequent citations to Kisor appear to signal the high court’s understanding—majority and dissent—that Chevron and Auer are linked. As goes Chevron, so goes Auer.
Does Auer deference survive? Technically yes. A close reading of Loper Bright reveals no ruling one way or the other on the future of Auer deference. But Loper Bright provides enough signals to know that Chevron and Auer are intertwined.
With Chevron deference overruled, Auer’s days are short. And as a practical matter, it’s unlikely that wise litigants would rely upon it. What administrative agency would rely on Auer deference in a post-Loper Bright world?
It seems likely that Auer will wither on the vine, Kisor notwithstanding. Administrative agencies and the parties they regulate will need to navigate a new, much less deferential present.
The cases are Loper Bright Enterprises v. Raimondo, U.S., No. 22-451, 6/28/24 and Relentless v. Department of Commerce, U.S., No. 22-1219, 6/28/24.
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