Auer Deference: Doubling Down on Delegation\u27s Defects

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why Congress should be disabled in all instances from granting administrators discretionary authority over rule interpretation—even in settings that do not raise serious risks of partiality or unfair surprise in administrative construction. Examining the relationship between statutorily directed deference and constitutional-structural principles clarifies the essential underlying objection to Auer and the limits of that objection. When Congress by law confers discretionary authority that does not exceed its constitutional power to delegate functions to an administrator, courts should respect that assignment of authority, unless it violates other specific constitutional commands. Yet, when delegations are at most only arguably consistent with the Constitution, extending deference—especially expanding deference as Auer does in successive determinations—exacerbates delegations’ difficulties. A reinvigorated nondelegation doctrine would solve the major Auer problem directly, and elimination of Auer-like deference would clearly be preferable to retaining the doctrine in its current form. Short of that, demanding that the statutory basis for deference is clearly articulated would provide a modest first step in cabining problems associated with constitutionally questionable delegations of lawmaking authority. Those who embrace the rule of law, whether advocates or opponents of the modern administrative state, should support that step

Looking With One Eye Closed: The Twilight of Administrative Law

n an article published recently in this Journal, Judge Loren Smith calls for a change in the focus of thinking and writing about administrative law. Attractive though his general themes are, in developing them Judge Smith passes much too quickly over two important points: the difficulty of arriving at political consensus, and the importance to political consensus of exactly those processes to which Smith objects

Property rights systems and the rule of law.

Property rights - rights to control, use, or transfer things (broadly conceived) - though not readily distinguished from other rights, comprise a category of rights that both strongly benefit from clear and well-designed legal rules and often are subject to "chiseling" from failures to follow legal rules or from ex post alterations of the rules. Governance systems that limit official discretion to impair property rights, that have institutions and rules that provide clear definition to property rights and that provide predictable and consistent applications of those rights, will accord with the rule of law and generally will also advance social welfare. Some systems will depart quite evidently from this pattern, to the detriment of those societies, allowing too ready changes in law at the discretion of too few officials, too unconstrained by law, as the example of Zimbabwe illustrates. But differences between the good and the bad will not be drawn along simple, discrete lines, a point made by comparing the Zimbabwe example with the United States. The systems most consistent with the rule of law will not be able effectively to bar all changes in the law or to eliminate official discretion. Instead, those systems will limit the avenues for change and the ambit of discretion in ways that make property more secure and impositions on it more predictable without reference to the identity of the individual official enforcing the law or the individual property owners subject to it.