Imagine a hapless individual, forced to participate against her will in a game over which participants must wager significant sums of money. The rules of the game are complex and arcane, and this individual is unfamiliar with them. Her competitor, however, is savvy and experienced, having played this game many times in the past and having helped formulate some of the rules of the game. Additionally, her competitor is exempt from the wager requirement, having been given a special dispensation by the operator of the game to be able to play for keeps without having to wager anything. Since our hapless protagonist does not have the choice to refuse to play the game despite these transparently unfair circumstances, this individual does her best to learn the rules as quickly as possible before the game commences. With a significant amount of money on the line, the game begins. After some time elapses, an impasse arises over a certain play by the protagonist that her competitor alleges violated the rules of the game. She, of course, argues with her competitor’s understanding of the rules, asserting that her move was perfectly acceptable. When they bring this dispute to the referee, the referee acknowledges that the rule is ambiguous and able to be understood in both ways. The referee, however, has a standing rule that the competitor’s understanding of the rules of the game are presumptively correct, a presumption which can only be overcome by a showing that the competitor’s interpretation is completely irrational or patently contrary to the text of the rules. Though the referee is perfectly capable of making an independent judgment—indeed, our protagonist does not understand why the referee is even there if not to independently review the meaning of the rules—the competitor’s knowledge of, and experience with, the game lead the referee to defer to the competitor’s views. Given that the rule is ambiguous and thus susceptible to both interpretations, our protagonist cannot make the required showing to overcome this deference. Thus, the competitor prevails in the dispute, which results in our protagonist losing the game, along with a hefty sum.
Would any rational individual think such a scenario or outcome fair for our hapless protagonist? Almost certainly not. Yet, such is the lived reality for individuals, corporations, and other entities subject to regulation by administrative agencies. Federal agencies, vested by Congress with power to “regulate in the public interest”[i] (among other things), make rules and regulations that govern the daily lives of citizens in every which way.[ii] Since citizens do not get to opt-out of federal laws or regulations, they are required to abide by the dictates of these agencies. And, thanks to the Supreme Court’s decisions in Bowles v. Seminole Rock & Sand Co.,[iii] reaffirmed in Auer v. Robbins,[iv] when a dispute arises between an agency and a regulated party over the meaning of a regulation, the agency’s understanding of the regulation is accorded deference and given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”[v] This is so even when the agency’s interpretation is not “the only possible reading of a regulation—or even the best one.”[vi]
This Essay proceeds in three parts, discussing why Auer and Seminole Rock were ill-conceived as a matter of constitutional law, statutory law, and policy. First, Auer creates serious separation of powers problems by vesting agencies de facto with the judicial power in a manner contrary to the letter and spirit of Article III. Second, Auer ignores the unambiguous mandate of the Administrative Procedure Act (APA),[vii] which instructs courts themselves to “determine the meaning . . . of the terms of an agency action.”[viii] Third, Auer creates perverse incentives for administrative agencies to “promulgate mush”[ix] by tipping the regulatory playing field in this way, allowing them to clarify ambiguous regulations via interpretive rules or informal guidance not subject to the requirements of the APA,[x] or even via court filings submitted after litigation has already commenced.[xi] Thankfully, members of the Court[xii] and of Congress[xiii] have heeded Justice Scalia’s call that “[e]nough is enough,”[xiv] and Auer appears to be on the brink of abrogation. This misbegotten judicial doctrine should be swept into the dustbin of bad precedent.
I. Auer Amounts to an Unconstitutional Delegation of Interpretive Authority from Federal Courts to Administrative Agencies
The Constitution declares that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”[xv] And, as Chief Justice Marshall memorably quipped in Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[xvi] Whether or not this means that “the federal judiciary is supreme in the exposition of the law of the Constitution,”[xvii] it at a minimum means that the federal judiciary’s primary task is to read the texts of laws, executive actions, and administrative promulgations, to ascertain their meaning, and to then declare what those texts say and mean, applying law to fact accordingly. Furthermore, given the structure of our constitutional system, this power should be exercised in a more-or-less exclusive manner by the judiciary.[xviii] As John Manning observed, “a core objective of the constitutional structure was to ensure meaningful separation of lawmaking from the exposition of a law’s meaning in particular fact situations.”[xix] This vesting of judicial power in a separate branch of government was based on the Framers’ firm belief in the importance of the separation of powers to preserve liberty and uphold the rule of law.[xx] As Madison noted, “usurpations are guarded against by a division of the government into distinct and separate departments.”[xxi] The accumulation of all powers,” Madison elsewhere stated, “in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[xxii]
Contravening the structural vision the Framers’ had for the national government and laid forth in the Constitution, the administrative state has become, in essence, a fourth, constitutionally-unaccounted-for branch of the federal government, “which has deranged . . . three-branch legal theories.”[xxiii] Given its disproportionate role in making laws and setting national policies, it is no wonder that even the Chief Justice recently noted that “the danger posed by the growing power of the administrative state cannot be dismissed.”[xxiv]
Auer deference contributes significantly to this constitutional dysfunction. By giving an agency the authority to control the interpretation of its own regulations by binding a reviewing court to that interpretation (unless the agency’s reading is flatly irrational or incoherent), Auer “amounts to a transfer of the judge’s exercise of interpretive judgment to the agency.”[xxv] And “[w]hen courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check . . . . [which] permits precisely the accumulation of governmental powers that the Framers warned against.”[xxvi] It is “contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well,”[xxvii] yet Auer “precludes judges from independently determining th[e] meaning” of regulations.[xxviii] In what perhaps may have been deliberate understatement given the tenor of his concurrence, Justice Thomas rightly observed in Mortgage Bankers Association that this and related doctrines “run the risk of compromising our constitutional structure.”[xxix]
II. Auer Ignores the Mandate of the APA
The APA states unequivocally that courts are responsible to “determine the meaning . . . of the terms of an agency action.”[xxx] The enactment of the APA itself came about largely as a compromise[xxxi] between those who wanted to protect New Deal programs by empowering the FDR-appointee-dominated federal judiciary “at the expense of the executive,”[xxxii] and those who opposed any further expansion of the New Deal regime and thus “sought to hamstring regulatory agencies by imposing a series of strong procedural and judicial constraints on their actions.”[xxxiii] As New Dealers realized they could not retain the presidency forever, they came to “value the APA’s reduction in the degree of agency discretion.”[xxxiv] More thoroughgoing judicial review seemed preferable to “allowing the [potentially Republican!] administration to have relatively unrestrained influence over agency behavior.”[xxxv] Accordingly, Congress passed a law that contained a series of procedural restraints to “make it costly and politically difficult for agencies to change existing policy.”[xxxvi] As Justice Jackson would observe shortly after the APA’s enactment, the law was meant to serve “as a check upon administrators whose zeal might otherwise have carried them to excesses . . . .”[xxxvii] The APA “confined agencies’ discretion and subjected their decisions to judicial review.”[xxxviii] And given the terms of § 706, it seems unmistakably clear that the APA emphasized “the primacy and independence of judicial judgment on questions of law.”[xxxix]
Despite this directive and this history, the Court in Auer retained a doctrine adopted prior to the enactment of the APA, thereby “produc[ing] a balance between power and procedure quite different from the one Congress chose when it enacted the APA.”[xl] Making matters worse, the Court has maintained this doctrine while “never mentioning § 706’s directive that the ‘reviewing court . . . determine the meaning or applicability of the terms of an agency action.’”[xli] Furthermore, the Court in Seminole Rock formulated this rule more-or-less out of thin air and without citation to authority.[xlii] And, readily overlooked by the Court in Auer and elsewhere, Seminole Rock was a case revolving around a specific, emergency, depression-era, war-time statute,[xliii] and like other war-time era cases,[xliv] should probably have been understood as limited to its facts, arising as it did during a time of national crisis.[xlv]
Nevertheless, Auer ignored all these considerations, instead giving to agencies the power to “determine the meaning” of their own actions.[xlvi] Far from finding it “absurd to hold that the courts must subordinate their judgment as to the meaning of a statute or regulation to the mere unsupported opinion of associate counsel in the administrative department,”[xlvii] the Court has reasoned that agencies’ familiarity with their own regulatory regimes and promulgated rules make them a better arbiter of the meaning of their ambiguous regulations.[xlviii] Whether true or not, this is contrary to the scheme of the APA as evinced by both its text and the history behind its enactment.
One further point deserves consideration. The APA is sometimes referred to as a “constitution” for the administrative state.[xlix] Like a constitution, the APA sets out a basic set of operating rules by which to guide the functioning of a set of government actors. If this is a fair comparison, then it is particularly disconcerting that Auer failed to mention the APA’s judicial review standards when it invoked Seminole Rock.[l] By way of analogy, Auer’s bypassing of the APA in favor of Seminole Rock would be comparable to a court ignoring the tax power provisions of the U.S. Constitution[li] in favor of the Articles of Confederation’s requisition system.[lii]
III. Auer Creates Perverse Incentives for Agencies to Be Deliberately Vague
As Justice Thomas recognized, “It is perfectly understandable . . . for an agency to issue vague regulations, because to do so maximizes agency power and allows the agency greater latitude to make law through adjudication rather than through the more cumbersome rulemaking process.”[liii] Additionally, Justice Scalia noted that, with Auer in place, agencies have “high incentive to rush out barebones, ambiguous rules construing statutory ambiguities, which they can then in turn further clarify through informal rulings entitled to judicial respect.”[liv] This incentive structure, however, poses fundamental rule-of-law issues, as vagueness “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.”[lv]
Furthermore, Auer cuts in the opposite direction from the general rule that “courts should construe ambiguities against the drafter responsible for them . . . .”[lvi] In Cole v. Young,[lvii] for instance, the Court addressed a dispute over the meaning of an Executive Order that had been “promulgated to guide the agency heads.”[lviii] However, the order was ambiguous, and this “failure to state explicitly what was meant [wa]s the fault of the Government.”[lix] As such, the Court concluded that “[a]ny ambiguities should . . . be resolved against the Government . . . .”[lx] This traditional rule, however, risks being narrowed or undermined by a rule like Auer that resolves ambiguities in favor of the government. This is especially worrisome since Auer, now having “taken on a life of its own,” has been applied “outside the context of traditional agency regulations” into unconventional areas like “criminal sentencing.”[lxi]
If the traditional rule applied to ambiguous regulations, rather than the precise opposite being true, then agencies—who, after all, are best suited to address any ambiguities in their regulations and resolve such issues, as they “have the ability to amend regulations”[lxii]—might seek to avoid the problems arising from ambiguous regulations by speaking more clearly in the first instance. Ultimately, “Regulating is not and should not be easy,” and “[r]equiring agencies to do the needed up-front hard work before issuing rules . . . will result in better rules and is something we all should embrace.”[lxiii] So long as Auer remains good law, however, the opposite incentives remain.
IV. Counterarguments and Considerations
Auer, of course, is not without its defenders. The decision itself was unanimous, and even its critics recognize that, like Chevron, the doctrine provides some measure of regulatory uniformity by mitigating “the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what the fairest reading of [a] regulation” might be.[lxiv] The issue, however, is not whether there is some justification for the rule—rather, the issue is whether the benefits of the rule are worth the aforementioned costs. In that assessment, Auer fails.
First, with respect to concerns over the balkanization of administrative law in the absence of a bright line rule requiring federal courts to defer to agency interpretations of ambiguous regulations, that fear is overblown. As Justice Scalia observed,
[T]he duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute[,] [f]or as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear.[lxv]
And, as with other circumstances where background principles upon which government officials depend change, once the new non-deferential standard of review is adopted and implemented clearly, its “recognized existence” would tend to “prevent” recurring issues arising pertaining to it.[lxvi] In other words, if agencies are on notice that their understanding of their own regulations are not going to receive deference, agencies will be incentivized to be clear in the first instance rather than to “promulgate mush,” thereby avoiding the scenario where their own regulations are subject to multiple different and conflicting interpretations by different federal courts. At any rate, more robust review could have the effect of placing responsibility for any regulatory ambiguities on the party both responsible for it and most able to clarify the issue.[lxvii] Such an outcome would seem to be a feature, rather than a bug, of a non-deferential standard of review in this circumstance.[lxviii]
Second, some argue that abrogating doctrines such as Auer that enable the federal courts to manage their dockets more efficiently will exacerbate administrability problems and flood the courts with significantly more work—a tall order given that courts are “hard pressed as they are.”[lxix] Some commentators have suggested that the Court, in adopting doctrines of deference like Auer, did so while “influenced by its management dilemmas.”[lxx] The sorts of cases where Auer is invoked tend to involve “complex and highly technical regulatory program[s],” and it is far simpler to defer to the agency who understands those technicalities than it is to undertake the hard work of understanding the regulatory scheme to ascertain the meaning of an ambiguous regulation.[lxxi] However, while the complexity of regulatory regimes fairly “leads to the conclusion that agencies and not courts should make regulations. . . . it has nothing to do with who should interpret regulations.”[lxxii] Such “argument[s] from inconvenience ought not to have a very controlling influence in questions of this sort,”[lxxiii] especially when one considers the significant separation of powers issues raised by an agency’s making and interpreting its own rules.[lxxiv] The rule of law should not be subjugated to efficiency concerns. And “if the business of the National courts should be increased,” the solution is not for the courts to adopt a canon of construction raising significant constitutional concerns, but rather that “Congress . . . easily supply the remedy by increasing their number and efficiency.”[lxxv] At the end of the day, the “great question” for a review court is, “What is the true construction” of the text at issue—a paradigmatically judicial query.[lxxvi] Even if Auer does lighten the workload of the federal judiciary to some extent, such a justification is not sufficient to support a rule that distorts the role of the courts and agencies in our scheme of government.
Third, some contend simply that concern over Auer is overblown. Since reviewing courts differentiate between interpretive rules and legislative rules based on their content rather than their form—refusing to give effect to the former when they effectively act as the latter—these Auer proponents contend that fears of wholesale end-runs around notice-and-comment are misplaced.[lxxvii] And data suggests that agencies, as a general rule, do not issue matters like interpretive rules and guidance documents deliberately in order to skirt APA requirements.[lxxviii] However, it is seriously overstating the point to contend that “[t]he threat of unchecked agency action posed by Seminole Rock is . . . an abstract threat proved unsubstantiated by the light of day.”[lxxix] For example, in G.G. v. Gloucester County,[lxxx] the Fourth Circuit applied Auer deference to uphold the Department of Education’s interpretation of its own sex discrimination regulations in order to side with a transgender student who alleged it was discriminatory to prevent that student from using the bathroom correlating to the student’s chosen gender identity.[lxxxi] Noting that “[a]gency interpretations need not be well-settled or long-standing to be entitled to deference,”[lxxxii] the Fourth Circuit took no issue with the fact that the interpretation in question came in the form of “an opinion letter dated January 7, 2015,”[lxxxiii] which was specifically solicited by G.G.[lxxxiv] Nor did the court acknowledge that, as the dissent observed, Congress’s meaning in enacting Title IX was clear enough such that neither the statute nor subsequent regulations could possibly be understood to have included transgender individuals within the ambit of the prohibition on sex discrimination.[lxxxv] Auer deference led the court to side with the agency, even though it was patently clear that the definition of “sex” being advanced by the agency was “simply an unsupported reach to rationalize a desired outcome.”[lxxxvi] Given the substantive, affirmative obligations that this ruling would have on schools across the country if affirmed,[lxxxvii] it seems naïve to contend that we should not worry about Auer because courts will faithfully and consistently recognize the distinction between interpretive and legislative rules and simply not apply Auer in cases where an interpretation of an ambiguous regulation “provides the basis for an enforcement action, has an immediate or direct effect on regulated parties, or is otherwise viewed as controlling in the field.”[lxxxviii] Unsurprisingly, even if the data suggests agencies do not typically use interpretive rules or guidance as a means of skirting APA requirements, it is clear that they do so sometimes. And when they do, and Auer is invoked, “the overwhelming majority of cases . . . result in an agency victory.”[lxxxix]
Finally, the simplistic contention that “if Congress is concerned about the agency’s one-two punch of vague regulation and surprising interpretation, it can . . . rectify the matter by writing a clearer statute,”[xc] ignores how agencies often utilize interpretive rules to revamp or recast old or narrow statutes and concomitant regulations in situations where Congress has oftentimes deliberately chosen not to update or broaden those statutes.[xci] This view also ignores the fundamental challenges of guiding a law through bicameralism and presentment to enactment, particularly in divided government. If majorities in both chambers are prevented from passing laws to prohibit agency adventurism due to obstruction by the other party or a presidential veto, Congress has very few tools left to prevent agencies from “going rogue.”[xcii]
Auer reinvigorated Seminole Rock to the detriment of separation of powers, the intended scheme of the APA, and prudent policy. While the doctrine never should have been revived by the Court, the positive upshot is that there now seems to be the will among some justices as well as members of Congress to put an end to this misguided administrative law doctrine. Perhaps in the coming weeks and months, Justice Thomas may be proven correct in his prediction that “the doctrine is on its last gasp.”[xciii] The sooner he is proven correct, the better.
* Cf. Jack M. Beerman, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010) (deriving the title of the article from Justice Breyer’s opinion in Morse v. Frederick, 551 U.S. 393, 432 (2007) (Breyer, J., concurring in the judgment in part and dissenting in part), where he stated that he “would end the failed Saucier experiment now”).
** This Essay won the First Place award in the Pacific Legal Foundation 2016 Law Student Writing Competition.
[i] See, e.g., 47 U.S.C. § 307(c) (giving the FCC power to grant license renewals to broadcasters if it finds that doing so is in the “public interest”); see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001) (“[W]e have found an ‘intelligible principle’ in various statutes authorizing regulation in the ‘public interest.’”).
[ii] See Stephen Breyer, The Executive Branch, Administrative Action, and Comparative Expertise, 32 Cardozo L. Rev. 2189, 2189 (2011) (noting that “routine agency decisions . . . affect our daily existence, often in profound ways”).
[iii] 325 U.S. 410 (1945).
[iv] 519 U.S. 452 (1997).
[v] Bowles, 325 U.S. at 414.
[vi] Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013).
[vii] Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551–59, 701–06 (1994)).
[viii] 5 U.S.C. § 706.
[ix] Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C. Cir. 1997), abrogated by Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015).
[x] See Peter L. Strauss, Recent Developments in Administrative Law: The Tremors of Two March 9, 2015 Supreme Court Decisions, Part I: Perez, 40 Admin. & Reg. L. News 4, 5 (Summer 2015) (“‘[P]romulgat[ing] mush’ permits [agencies] to establish a wide zone within which future and effectively binding ‘interpretations’ can be generated—and those interpretations can be made without public process, reason-giving, or participation by the agency’s political leadership.”); Conor Clarke, The Uneasy Case Against Auer and Seminole Rock, 33 Yale L. & Pol’y Rev. 175, 176 (2014) (mentioning concerns that Auer generates bad incentives by giving administrators a broad mandate to interpret their own regulations,” incentivizing them “to produce vague regulations”).
[xi] See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (“Auer ordinarily calls for deference to an agency’s interpretation of its own ambiguous regulation, even when that interpretation is advanced in a legal brief.”); see, e.g., Gardebring v. Jenkins, 485 U.S. 415, 429–30 (1988) (recognizing that “the Secretary had not taken a position on th[e] question [presented] until this litigation” but affirming that interpretation nevertheless).
[xii] See Mortg. Bankers Ass’n, 135 S. Ct. at 1213 (Thomas, J., concurring) (“[Auer] undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.”); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013) (Roberts, C.J., concurring) (“It may be appropriate to reconsider [Auer] in an appropriate case.”).
[xiii] See Separation of Powers Restoration Act of 2016, S. 2724, 114th Cong. (2016) (amending 5 U.S.C. § 706 to clarify that reviewing courts must decide “de novo” the question of a regulation’s proper interpretation); Adrian Vermeule, The Separation of Powers Restoration Act (in the Age of Trump), Yale J. Reg. Notice & Comment (Nov. 10, 2016), http://yalejreg.com/nc/the-separation-of-powers-restoration-act-in-the-age-of-trump-by-adrian-vermeule/ [https://perma.cc/M7LA-DHTL] (“There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016.”).
[xiv] Decker, 133 S. Ct. at 1339 (Scalia, J., concurring in part and dissenting in part).
[xv] U.S. Const. art. III, § 1.
[xvi] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
[xvii] Cooper v. Aaron, 358 U.S. 1, 18 (1958) (per curiam). But see Louise Weinberg, Dred Scott and the Crisis of 1860, 82 Chi.-Kent L. Rev. 97, 121 (2007) (noting that Lincoln’s view that Dred Scott “was only an ordinary litigation between private parties, and as such should not be allowed to set national policy,” was his way of “finding a power and duty, reposing not only in the executive and legislative branches, but even in courts below, to disregard a Supreme Court opinion” that held itself out to be a resolution of constitutional issues).
[xviii] It has been longstanding historical practice to recognize the power of Congress to create non-Article III adjudicative bodies to decide certain types of matters. However, the permissible scope of Congress’s ability to do so has recently been narrowed somewhat, with some arguing that the practice should be limited to recognized historical exceptions without any further expansion. See, e.g., Stern v. Marshall, 564 U.S. 462, 504 (2011) (Scalia, J., concurring) (observing that “something is seriously amiss with our jurisprudence in this area” and arguing that “in my view an Article III judge is required in all federal adjudications, unless there is a firmly established historical practice to the contrary”).
[xix] John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 644 (1996).
[xx] See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1216 (2015) (Thomas, J., concurring in the judgment) (“To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution.”); see, e.g., Mass. Const. pt. 1, art. XXX (“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”).
[xxi] The Federalist No. 51 (James Madison).
[xxii] The Federalist No. 47 (James Madison).
[xxiii] FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting).
[xxiv] City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1879 (2013) (Roberts, C.J., dissenting).
[xxv] Mortg. Bankers Ass’n, 135 S. Ct. at 1219 (Thomas, J., concurring).
[xxvi] Id. at 1221.
[xxvii] Talk Am., Inc. v. Mich. Bell. Tel. Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring).
[xxviii] Mortg. Bankers Ass’n, 135 S. Ct. at 1219 (Thomas, J., concurring)
[xxix] Id. at 1215.
[xxx] 5 U.S.C. § 706.
[xxxi] See generally George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996).
[xxxii] Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, The Political Origins of the Administrative Procedure Act, 15 J.L. Econ. & Org. 180, 191 (1999).
[xxxiii] Id. at 190.
[xxxiv] Id. at 203.
[xxxv] Id. at 193.
[xxxvi] Id. at 192.
[xxxvii] United States v. Morton Salt Co., 338 U.S. 632, 644 (1950).
[xxxviii] FCC v. Fox Television Stations, Inc., 556 U.S. 502, 537 (2009) (Kennedy, J., concurring).
[xxxix] Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1120 (1987).
[xl] Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., concurring).
[xlii] See id. at 1213–14 (Thomas, J., concurring) (referring to Seminole Rock as an “unsupported rule” that was “announced[ ]without citation or explanation”); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1340 (2013) (Scalia, J., concurring in part and dissenting in part) (noting that Seminole Rock “offered no justification whatever—just the ipse dixit that ‘the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))); see also Kenneth Culp Davis, Scope of Review of Federal Administrative Action, 50 Colum. L. Rev. 559, 597 (1950) (“The Seminole proposition is hardly more than dictum, for the Court first arrived at the same result without the aid of the administrative interpretation . . . .”).
[xliii] Emergency Price Control Act of 1942, Pub. L. No. 77-421, 56 Stat. 23. See Seminole Rock, 325 U.S. at 413 (“We granted certiorari because of the importance of the problem in the administration of the emergency price control and stabilization laws.”); Kevin O. Leske, Between Seminole Rock and a Hard Place: A New Approach to Agency Deference, 46 Conn. L. Rev. 227, 245 (2013) (noting that Auer deference “had a modest beginning in a case decided in the midst of World War II”).
[xliv] E.g., Korematsu v. United States, 323 U.S. 214 (1944).
[xlv] See Kenneth Culp Davis, Scope of Review of Federal Administrative Action, 50 Colum. L. Rev. 559, 598 (1950) (“The context of the Court’s statement [in Seminole Rock] . . . substantially limits it.”); Sanne H. Knudsen & Amy J. Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L.J. 47, 55, 60 (2015) (“The story of Seminole Rock is intertwined with the story of the Office of Price Administration (OPA) and the particular challenges of the price control era. . . . Th[e] historical context, and the sense of urgency to provide clarity to price control measures, may have contributed to the Court’s willingness to give great weight to the administrative interpretation in Seminole Rock. . . . It could be, then, that we might understand the outcome in Seminole Rock as a result of the unique circumstances of war and economic depression and qualify it as such.”); see also A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528 (1935) (“Extraordinary conditions may call for extraordinary remedies.”); Earl Warren, The Bill of Rights and the Military?, 1975 Mil. L. Rev. 249, 260–64 (distinguishing war-time precedent as having been “argued or decided in an emergency context” and thus is not to be taken automatically as controlling beyond that context).
[xlvi] See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., concurring) (“Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations.”).
[xlvii] Southern Goods Corp. v. Bowles, 158 F.2d 587, 590 (4th Cir. 1946).
[xlviii] See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 152 (1991) (“Because the Secretary promulgates these standards, the Secretary is in a better position . . . to reconstruct the purpose of the regulations in question.”).
[xlix] See Lars Noah, Interpreting Agency Enabling Acts: Misplaced Metaphors in Administrative Law, 41 Wm. & Mary L. Rev. 1463, 1473 (2000) (footnote omitted) (“[A] number of commentators have likened the Administrative Procedure Act (APA) to a constitution . . . .”); see, e.g., Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va. L. Rev. 253, 253 (1986) (“My thesis is a simple one: the APA is more like a constitution than a statute.”); Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 90 (1998) (describing the APA as a “regulatory constitution”); Cynthia R. Farina, On Misusing “Revolution” and “Reform”: Procedural Due Process and the New Welfare Act, 50 Admin. L. Rev. 591, 626 n.189 (1998) (describing the APA as “constitution-like”); Keith Werhan, The Neoclassical Revival in Administrative Law, 44 Admin. L. Rev. 567, 583 n.115 (1992) (“In operation, the APA, particularly its provisions for judicial review, functions more like our Constitution than a statute.”).
[l] See Auer v. Robbins, 519 U.S. 452, 461 (1997).
[li] See, e.g., U.S. Const. art. I, § 8, cl. 1; U.S. Const. amend XVI.
[lii] See Articles of Confederation of 1781, art. VIII, para. 2.
[liii] Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting).
[liv] United States v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting).
[lv] Talk Am., Inc. v. Mich. Bell. Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring).
[lvi] Manning, supra note 19, at 656. Cf. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.”).
[lvii] 351 U.S. 536 (1956).
[lviii] Id. at 556.
[lxi] Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1214 (2015) (Thomas, J., concurring)
[lxii] Manning, supra note 19, at 695 n.392.
[lxiii] Nancy Nord, Regulatory Reform Bills Could Improve Agency Rulemaking, The Hill (Sept. 29, 2015, 3:00 PM), http://thehill.com/blogs/congress-blog/255217-regulatory-reform-bills-could-improve-agency-rulemaking [https://perma.cc/L4GU-FH6L].
[lxiv] Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia, J., concurring in part and dissenting in part).
[lxv] Id. at 1341–42. Indeed, as he observes, the EPA did precisely this in response to an unfavorable ruling by the court of appeals in Decker. Id. at 1342.
[lxvi] Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 123–24 (1872) (Bradley, J., dissenting).
[lxvii] Cf. United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (noting that the rule of lenity “places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead”).
[lxviii] See, e.g., Manning, supra note 19, at 647 (noting that “separation of lawmaking from law-exposition . . . limits arbitrary government by providing legislators an incentive to enact rules that impose clear and definite limits upon governmental authority, rather than adopting vague and discretionary grants of power”).
[lxix] Indus. Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 469 (D.C. Cir. 1974).
[lxx] Strauss, supra note 39, at 1095. See id. at 1095–96 (“[T]he dimensions of the Court’s problem are such as virtually to compel the hypothesis that some such effect must be occurring . . . .”). Accord Harold H. Bruff, Specialized Courts in Administrative Law, 443 Admin. L. Rev. 329, 362 (1991) (footnotes omitted) (“The Supreme Court’s recent mandates that federal courts pay special deference to agency judgments on issues of law and procedure probably resulted from judicial decentralization and overload.”).
[lxxi] Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)).
[lxxii] Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013).
[lxxiii] Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 124 (1872) (Bradley, J., dissenting).
[lxxiv] See supra Part I.
[lxxv] Slaughter-House Cases, 83 U.S. at 124 (Bradley, J., dissenting).
[lxxvii] See, e.g., Robin Alexander Smith, Perez v. Mortgage Bankers Association and the Future of Seminole Rock, 40 Harv. Envtl. L. Rev. 173, 181 (2016) (internal quotation marks omitted) (noting that courts of appeals have struck down agency interpretation in cases where “it provides the basis for an enforcement action, has an immediate or direct effect on regulated parties, or is otherwise viewed as controlling in the field”); see, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000) (refusing to apply Auer deference where it would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation”).
[lxxviii] Connor N. Raso, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 Yale L.J. 782, 821–22 (2010).
[lxxix] Smith, supra note 77, at 186. Accord Raso, supra note 78, at 821 (concluding after an empirical survey that “[a]gencies do not commonly use guidance to make important policy decisions outside of the notice and comment process” and thus “the consternation over guidance documents . . . is overstated”).
[lxxx] G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), cert. granted, 137 S. Ct. 369 (2016) (mem.).
[lxxxi] See G.G., 822 F.3d at 714–15, 723.
[lxxxii] Id. at 719.
[lxxxiii] Id. at 715.
[lxxxiv] Id. at 732 (Niemeyer, concurring in part and dissenting in part).
[lxxxv] Id. at 736.
[lxxxvi] Id. at 737.
[lxxxvii] See id. at 738 (noting that, under the Department of Education’s view, “a school could never meaningfully provide separate restrooms and locker rooms on the basis of sex”).
[lxxxviii] Smith, supra note 77, at 181.
[lxxxix] Jennifer Nou, Regulatory Textualism, 65 Duke L.J. 81, 90 (2015).
[xc] Clarke, supra note 10, at 194.
[xci] See, e.g., supra notes 80–86 and accompanying text; see also Talk Am., Inc. v. Mich. Bell. Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring) (noting that the case involves “an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”).
[xcii] See, e.g., Stuart Shapiro, The Congressional Review Act, Rarely Used and (Almost Always) Unsuccessful, The Hill (Apr. 17, 2015, 7:30 AM), http://thehill.com/blogs/pundits-blog/lawmaker-news/239189-the-congressional-review-act-rarely-used-and-almost-always [https://perma.cc/6H2C-W5NS] (noting that the Congressional Review Act, which created a means by which Congress may attempt to override agency regulations, is “relatively toothless” and “has only worked precisely one time”).
[xciii] United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016) (mem.) (Thomas, J., dissenting from denial of certiorari).