What About Auer?

 

Everyone is emoting about the Supreme Court decision in Loper Bright overturning Chevron. No one that I can find has said anything about Auer.

What is the difference?  My non-legal mind is woefully insufficient to delineate the differences between Chevron and Auer, but I’ll give it a shot nevertheless. Remember: just my opinion. I could be wrong (the Dennis Miller caveat).

Chevron deference means that if Congress passes a statute with vague language, the administrative law judges have to defer to the agency’s interpretation of the statute.

Auer deference means that if the agency implementing a Congressional statute has to write rules to implement Congress’s legislation, and happens to write a vague rule whose interpretation comes into dispute, the administrative law judge has to defer to the agency’s interpretation of its own rule.

Deference upon deference. It is no wonder the administrative state comes in for such opprobrium. The deck is doubly stacked against any citizen bullied by the administrative state.

While Scalia gave us Chevron deference during the Reagan administration to try and allow that administration to implement environmental regulations without undue obstruction by the courts, Auer, on the other hand, was decided in 1946 about the time the Administrative Practices Act was passed.

Chevron has become one of the most vile violations of fundamental judicial fairness in the history of the nation. it has backfired spectacularly. It presumed good faith from Congress, federal agencies, and administrative law justices. That was one of the most flawed presumptions ever committed by the Court. It has proved the old aphorism, obscene though it may be:  Presumption is the mother of f-ups. (Was that a Marine Corps saying?) The question is, does Loper Bright also overturn Auer deference?  Perhaps those legal eagles, John Yoo or Richard Epstein could enlighten me on this question. I eagerly await their erudite instruction and parsing of this decision.

My next question is, if both Chevron and Auer deference are now overturned, can we then dispense with the administrative law system in its entirety? It is a shadow justice system run by the executive branch with the main purpose of bleeding plaintiffs to penury before they can get a fair hearing in an actual court of law, and has no place in a representative republic. We have an independent federal court system that is not run by the executive branch. Why do we need an administrative law judicial system?  Only an out-of-control administrative state will ever result from such a parallel judicial system, that becomes its own legislative, executive, and judicial system. There is no separation of powers at all. There are no checks and balances.

Can we now dismantle this star chamber system?

American citizens deserve nothing less.

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There are 4 comments.

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  1. John Park Member
    John Park
    @jpark

    Auer got limited a couple terms ago in Kisor.

    • #1
  2. iWe Coolidge
    iWe
    @iWe

    IMO, once civil penalties can be resisted via a jury trial, Jarkesy, it removed the teeth of the administrative law system. 

    This will take a long time to pass all the way through the courts and deep state, but the net impact of last week’s rulings are enormous. And wonderful.

    • #2
  3. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    John Park (View Comment):

    Auer got limited a couple terms ago in Kisor.

    Kisor affirmed Auer deference. 

    Again, as I understand it, Auer deference REQUIRES an administrative law judge, and any federal judge, to accept an agency’s interpretation of a rule that the agency has made, including a rule that has the force of law.That is a really bad deal, and I have a hard time seeing how Auer is not overturned, as even more onerous than Chevron, in the Loper Bright decision.

    The SC upheld Skidmore deference (more and more deference) which is, as far as I can tell, a deference that is accorded an agency’s interpretation of a rule that it has made, to the extent that the rule is reasonable and the agency’s arguments for it’s interpretation are persuasive. Skidmore deference allows the court or the judge to consider an agency’s definition in each given case and make its (the  court or the judge) own assessment of how reasonable the interpretation is in the given case. That is, there is no absolute requirement, as there is in Chevron or Auer deference, that the court accept the agency’s interpretation always, in every case. So Skidmore is much more reasonable. 

    There is also nothing in these deference doctrines that require a separate administrative law system. 

    Please not that in the current law talk podcast, neither Prof Epstein or Yoo mention Auer deference. Not does the Supreme Court in its decision, which uphold Skidmore deference. 

    So I continue to ask, what about Auer?

    I claim the Loper Bright decision overturns Auer as it does Chevron. It is hared to see how Auer can be constitutional if Chevron is not. Skidmore seems more reasonable. 

    Of course we have seen that agency’s like the EPA, the Dept of Education, the Dept of Homeland Security, have all bent and broken statutory language and rules with all kinds of bizarre ideas that are concocted out of thin air and have no bearing on reality (CO2 is a pollutant; gender identity and biological sex are the same thing; etc. etc.)

    • #3
  4. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    iWe (View Comment):

    IMO, once civil penalties can be resisted via a jury trial, Jarkesy, it removed the teeth of the administrative law system.

    This will take a long time to pass all the way through the courts and deep state, but the net impact of last week’s rulings are enormous. And wonderful.

    As I understand it, getting to a jury trial requires going through the whole prolonged processesof  the administrative law process, which is punitive in the extreme.

     

    • #4
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