Why Don’t We Flip the Presumption of Auer? Towards an Administrative “Rule of Lenity”

I have a very immodest proposal: let’s flip the presumption of Auer deference so that the regulated party, rather than the regulatory agency, gets the benefit of any ambiguity in a regulation? We’ll start here, but it should be noted for the record that the same logic extends to Chevron deference also.

Think about it.

In contracts, this is already the case.

Contra proferentum is a basic principle of contract law which provides that “[i]n choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.” Restatement (Second) of Contracts, § 206 (1979).

Mesa Air Group, Inc. v. Dep’t of Transp., 87 F.3d 498, 506 (D.C. Cir. 1996)

In criminal law, too, this is the rule.

The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also 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.

United States v. Santos, 553 U.S. 507, 514 (2008) (plurality op.) (internal citations omitted).

In the administrative law context, however, it’s the exact opposite.

Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945).

From whence did this assertion in Bowles come? The reader will take comfort in knowing that the Court cited no statute or precedent for the proposition–it merely asserted it baldly, as if it was so obvious to not need justification.

Well, it isn’t. In fact, it stands out like a sore thumb when juxtaposed against these other areas of law. So maybe it’s time we amend the Administrative Procedure Act to change things.

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