The Past, Present and Future of Auer Deference: Mead, Form and Function in Judicial Review of Agency Interpretations of Regulations

For many years, courts have deferred to an agency’s interpretation of its own regulations utilizing a standard of review that has the same effect as Chevron deference. Although this review standard – commonly referred to as Auer or Seminole Rock deference – has been widely accepted, the Supreme Court has provided very little theoretical support for the standard. The Court’s decision in United States v. Mead has recently reshaped the application of Chevron deference. Mead’s effect has now begun to be felt when the Court reviews an agency’s interpretation of its regulations. A quintet of recent Supreme Court decisions has had a cumulative effect on Auer deference that resembles the impact that Mead has had on Chevron deference. This article assesses this developing area of administrative law. The first part describes the past of the long-accepted rule of deference to an agency’s interpretation of its own regulations. The second part discusses the Court’s recent changes in its approach to the traditional rule of deference, highlighting its incompatibility with Mead. The final part of the article discusses the future of judicial review in this context, and presents a new standard of review that accommodates form and function. The article supports a two-step standard that would first apply the clear meaning of the regulation. If the regulation were ambiguous, a new standard of review, analogous to Skidmore review, would apply. Under this regime, an agency would not bind a court by its interpretation, but would have an opportunity to convince the court that the court should adopt the agency’s interpretation, informed as it may be by the agency’s experience and expertise. The article makes the case that the judicial exercise of interpretive power in this context is consistent with the Constitution, the APA, and the structure of administrative law.