The law of judicial review of agency legal interpretations has undergone an important reshaping as a consequence of the Supreme Court decision in United States v. Mead Corp. That decision and the important follow-on decision in National Cable & Telecommunications Ass 'n v. Brand X Internet Services have changed the understanding of the Court's landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron defined a new era of judicial deference to an agency's interpretation of an ambiguous statute, but the Chevron era has itself been transformed.
These legal developments had seemed to have little consequential impact on a related legal doctrine that is also at the center of the relationship between courts and agencies. Regulations have come to provide the applicable source of public law in an increasing number of cases and now occupy a place in administrative law that is comparable to the place of statutes. Regulations share an important characteristic with statutes: both are often ambiguous. The standard that applies when a court reviews an agency's interpretation of an ambiguous regulation had been initially defined by Bowles v. Seminole Rock & Sand Co.—a decision that predated the Administrative Procedure Act (APA). This early decision had been accepted wholeheartedly by the Court after Chevron, most notably in Auer v. Robbins. The resulting black-letter law—that courts will defer to any reasonable agency interpretation of its own regulations—had seemed to have exactly the same effect as Chevron deference. Because of the significance of regulations in administrative law, this rule of deference has played a critical role in defining the relationship between courts and agencies.
This tidy rule of deference has now come to be far less tidy and secure as a result of a quintet of recent Supreme Court decisions. These decisions—Gonzales v. Oregon, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Talk America, Inc. v. Michigan Bell Telephone Co., Christopher v. SmithKline Beecham Corp., and Decker v. Northwest Environmental Defense Center—have had a cumulative effect on Auer deference that resembles the impact that Mead has had on Chevron deference. These cases reveal a Court that has come to view Auer deference as either less deferential than or equivalent to Chevron deference, and subject to a test for the (uncertain) standard's applicability. The Court is, however, reshaping this law of deference with little apparent understanding of the impact of its decisions. Moreover, the Court has provided little rationale for its changes in the law.
This article will assess this developing, but under-analyzed, 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 the degree to which the Court is now less willing to defer to an agency's interpretation of its own regulations.
The final part of the article discusses the future of deference in this context and seeks to accommodate the functional and formal reasons for a rule of deference. In short, this part presents a theoretical rationale for a new non-deferential standard of review.
Michael P. Healy, The Past, Present and Future of Auer Deference: Mead, Form and Function in Judicial Review of Agency Interpretations of Regulations, 62 U. Kan. L. Rev. 633 (2014).