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Law in Contemporary Society
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
The Shortcomings of Auer Deference-- By AndyGutierrez - 01 Mar 2018 Judicial deference allows courts to accept the judgment or interpretation of another legitimate party in lieu of their own. While deference can be helpful in cases where another party does in fact use careful consideration to reach their judgments, in cases where such judgment is not used, deference doctrines undermine the authority of courts by transferring the power of interpretation to other branches. This very real possibility is highlighted by the high level of deference given to agencies under Auer vs. Robbins and its subsequent line of cases. Auer deference threatens the separation of powers by allowing agencies to essentially determine the law without going through notice-and-comment rulemaking without subjecting interpretations to a high enough level of analysis. Even the subsequent exceptions carved out to narrow Auer deference fail to enable courts to investigate agency decisions thoroughly. As it is, Auer deference should be abandoned by courts in favor of Skidmore deference, which empowers courts to use their interpretive tools to determine the level of deference owed to agencies. Deference under Auer is extremely high - unless an agency’s interpretation of its own ambiguous regulation is clearly erroneous or inconsistent, deference is warranted. Further, an agency’s interpretation need not be the only possible interpretation or the best possible interpretation; it only has to be a reasonable interpretation for deference to be warranted. In effect, agencies are able to have their interpretations given the force of law without having to undergo notice-and-comment rulemaking or other procedures. The exceptions to Auer that the Court created after realizing the potential for agency abuse of Auer deference are not enough to temper the separation of powers concerns. The exceptions are either lacking in substantial clarification as to how and when they should be applied, are unreasonably narrow in many circumstances, or are easily avoidable by agencies with a passing familiarity of their applications. The exceptions to Auer apply when an agency interpretation lacks fair and considered judgment, when an agency interpretation comes as an unfair surprise, or when an agency’s regulation parrots statutory language. While the first exception regarding judgment sounds like it would have a straightforward application and a high bar. However, the Court has declined to clarify what is meant by fair and considered judgment and has instead opted to suggest what it is not. Thus far the Court has said that a lack of fair and considered judgment might be evidenced by either an interpretation that conflicts with a prior interpretation or a post hoc rationalization or convenient litigating position. This definition, or lack thereof, is not in line with what we might expect fair and considered judgment to mean. Further, agencies do not have to affirmatively show that they used fair and considered judgment. Despite the exceptions to fair and considered judgment, the Court has made clear that an agency is not disqualified from changing its mind because agencies are encouraged to scrutinize their interpretations and policies. The non-dispositive nature of the exception allows agencies to wiggle out of it. Once the exception of a post hoc rationalization was established, agencies were put on notice of the requirement and therefore became able to again escape the loophole with simple actions. Finally, a convenient litigating position is a collection of words that seem arbitrary and without meaning. While the Court has made clear what fair and considered judgment is not, it has not elucidated what it is. Fair and considered judgment does not seem to require citations to data, precedent, or experts (as the agencies are presumed to be the experts). In effect fair and considered judgment becomes a meaningless, squishy standard that agencies can circumvent without showing anything. The exception regarding parroting is similarly laughable. While the Court has made clear that summarizing or paraphrasing will suffice to meet this exception, even this standard is easy enough to meet. Since agencies are aware of the standard, they can be sure that their regulations go beyond parroting by explaining and clarifying what a statute or statutory term means. Agencies can then lean on presumptions of expertise and knowledge implicit and necessary to administrative law in order to escape this exception as well. Finally, the exception of unfair surprise is unreasonably narrow. Unfair surprise applies when notice is not provided to a regulated agency or when liability is imposed for past actions. Not only are the applications of unfair surprise when interpreted this way narrow, but they also disregard the consequences agency actions have on individuals. In reading unfair surprise as only applying to regulated entities, the exception disregards that agency guidelines have very real effects on private citizens. For instance, if the Department of Education issues an interpretation that overturns a prior regulation, which is of course permitted despite the fair and considered judgment exception, the concern of unfair surprise should be for the students, families, and school officials affected more so than for the regulated entities. In focusing on the regulated entities, the exception of unfair surprise allows agencies to attain deference by pointing to the clarity of their language or the actions taken before announcing the new interpretation to suggest that regulated entities should have been on notice. Given that Auer deference diverts judiciary power to agencies, it should be discarded for Skidmore deference, which balances the interests of respecting agency expertise and recognizing judges’ roles. Skidmore deference is afforded on a sliding scale based on how an agency’s interpretation does against factors including thoroughness of consideration, validity of reasoning, consistency and contemporaneousness of an interpretation, and other persuasive powers of the agency. While these factors are similarly somewhat lacking in clarity, they provide Courts with more tools and agency by which to determine how much deference is owed. Skidmore deference is already applied in cases where courts are unsure whether Auer applies, so the transition would be smooth and clarifying. Applying Skidmore to agencies’ interpretations of their own ambiguous regulations would address the shortcomings of Auer, while allowing for courts to determine how to best apply the different factors.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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