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Congressional Research Servick
Has Judicial Deference to Agency Regulatory
Interpretations Reached Its Final Auer?
March 25, 2019
On Wednesday, March 27, the Supreme Court is scheduled to hear arguments in Kisor v. Wilkie, in which
the Court is asked to overturn one of the most significant and contentious doctrines in administrative law.
That doctrine, first espoused by the Court nearly seventy-five years ago in Bowles v. Seminole Rock &
Sand Co., and later reaffirmed in Auer v Robbins, generally instructs courts to defer to agencies'
reasonable constructions of ambiguous regulatory language. The Court's decision to uphold, narrow, or
end application of the Auer doctrine not only may have direct ramifications for agencies' approach to
decision making, but also may signal whether the Court will reconsider an even more consequential
administrative law doctrine-the Chevron doctrine-in the near future. This Sidebar provides a general
overview of the Auer doctrine and the Supreme Court's consideration of Kisor, including the potential
consequences of the Supreme Court's decision in that case.
The Auer Doctrine
The Supreme Court has established several doctrines by which courts may afford some level of deference
to agency legal interpretations of the statutes they administer and regulations they promulgate. The most
well-known deference regime-known as the Chevron doctrine-generally requires courts to defer to an
agency's reasonable interpretation of an ambiguous statute it administers. The Auer doctrine,
alternatively, applies when a court is reviewing an agency's interpretation of its own ambiguous
regulation. In that event, Auer instructs courts to defer to the agency's interpretation unless it is plainly
erroneous or inconsistent with the regulation. While agency interpretations are generally afforded
Chevron deference only if they are contained in a statement that has the force of law, such as a regulation
promulgated following notice-and-comment proceedings, agency interpretations afforded Auer deference
may be rendered in a broader range of documents, such as internal agency memoranda and legal briefs.
The Supreme Court has articulated several exceptions to Auer. For example, deference is unavailable
when the regulation being interpreted does little more than restate the terms of the statute that the
agency administers, or when the regulation is not in fact ambiguous. In Christopher v. SmithKline
Beecham Corp., the Supreme Court discussed other situations in which Auer deference is potentially
unavailable. In that decision, the Court refused to accord Auer deference to the Secretary of Labor's
interpretation of regulations promulgated under the Fair Labor Standards Act. After reiterating the
foundational rule that deference is unavailable in the case of an interpretation that is plainly erroneous or
inconsistent with the regulation, the Court further explained that deference is inappropriate if the
agency's interpretation 'does not reflect [its] fair and considered judgment on the matter in question.'
Fair and considered judgment may be absent where the interpretation at issue is contrary to an earlier
construction, or if the interpretation merely seems to represent a 'convenient litigating position' or an
after-the-fact defense of a prior agency decision.
Congressional Research Service
https://crsreports.congress.gov
LSB10279
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