As Jonathan wrote earlier, the Supreme Court’s Wednesday decision in Decker v. Northwest Environmental Defense Center might portend big things for Auer deference. Jonathan’s already hit the high points, but I wanted to note what Scalia said about how deferential Auer deference really is.
It turns out there’s disagreement in the literature over the strength of Auer (or Seminole Rock) deference, i.e., the deference that’s due to an agency’s construction of its own regulations, relative to Chevron deference, the deference that’s due to an agency’s construction of a statute (when the agency is making statements that have the force of law, as per Mead). Robert A. Anthony, in The Supreme Court and the APA: Sometimes They Just Don’t Get It, calls Auer “an indulgent if not downright abject standard of deference.” Bill Eskridge and Lauren Baer, in The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, classify Seminole Rock/Auer deference as stronger than Chevron deference. Stephen M. Johnson, in Bringing Deference Back (But for How Long?): Justice Alito, Chevron, Auer, and Chenery in the Supreme Court’s 2006 Term, also describes Auer deference as “even more deferential than Chevron deference.”
But not everyone takes this view. Richard Pierce, the author of one of the leading administrative law treatises, writes in Democratizing the Administrative State that “Seminole Rock deference is about as strong as Chevron deference.” (All this is taken from Hanah Metchis Volokh, The Anti-Parroting Canon, 6 NYU J. L. & Liberty 1 (2011).)
Scalia, in Decker, comes down on the Pierce side:
The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.
Of course, Scalia is opposed to Mead and the whole idea of different levels of deference (Chevron, Skidmore, etc.). But even if you accept Mead, you could still think that you can never be more deferential than Chevron. If there’s an ambiguity, Chevron allows for interpretations that are within the ambiguity, but surely you can never allow for interpretations that are outside of the ambiguity. So, on Scalia’s view, Auer and Chevron are equally strong.