Auer Deference: Scope, Application, and Impact

Explore the pivotal role of Auer deference in administrative law, its evolution, and how it shapes the dynamic between courts and federal agencies in interpreting regulations.


Auer deference, a critical principle in administrative law, plays a significant role in shaping the relationship between courts and federal agencies. This doctrine, which has evolved over time, instructs courts to defer to an agency's reasonable interpretation of its own ambiguous regulations. The scope, application, and impact of Auer deference have been subjects of intense legal debate, affecting how regulations are interpreted and applied across various sectors of government.

The origins of Auer deference can be traced back to earlier principles of judicial deference to executive interpretation. While the Administrative Procedure Act (APA) of 1946 established foundational rules for agency actions, the specific doctrine of Auer deference emerged later, taking its name from the 1997 Supreme Court case Auer v. Robbins.

Prior to Auer, courts relied on various standards when reviewing agency interpretations. As noted in a Congressional Research Service report, "Statutes define the scope and reach of agencies' power, granting them discretion to, for example, promulgate regulations." This discretion laid the groundwork for the development of deference doctrines.

The period between the APA's adoption and the landmark Chevron decision in 1984 saw courts using a mix of approaches. According to a House Judiciary Committee document, "In the time between the APA's adoption and Chevron, courts relied interchangeably on cases applying the mandamus standard, cases applying the traditional" approaches to reviewing agency actions.

The modern understanding of Auer deference has been shaped by several Supreme Court decisions, most notably the 2019 case Kisor v. Wilkie. In this decision, the Court provided a comprehensive framework for applying Auer deference while also placing significant limitations on its scope.

According to the Supreme Court's opinion in Kisor v. Wilkie, "We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities."

The Court outlined several steps that must be taken before Auer deference can be applied:

  1. The regulation must be genuinely ambiguous.
  2. The agency's interpretation must be reasonable.
  3. The interpretation must reflect the agency's authoritative, expertise-based, and fair and considered judgment.

These requirements significantly narrow the circumstances under which Auer deference applies, addressing some of the criticisms that had been leveled against the doctrine.

Key Components and Concepts

Genuine Ambiguity

Before a court can apply Auer deference, it must determine that the regulation in question is truly ambiguous. This involves exhausting all traditional tools of statutory interpretation, including examining the text, structure, history, and purpose of the regulation.


Even if a regulation is ambiguous, the agency's interpretation must still be reasonable. Courts will not defer to interpretations that are plainly erroneous or inconsistent with the regulation.

Agency Expertise and Authority

The interpretation must come from the agency's authoritative position and reflect its expertise in the subject matter. Ad hoc interpretations or those made without proper consideration may not qualify for deference.

Fairness and Consistency

Courts will consider whether the agency's interpretation is a fair and considered judgment, taking into account factors such as whether the interpretation is a convenient litigating position or a post hoc rationalization.

Rights and Responsibilities

Agency Responsibilities

Agencies bear the responsibility of providing clear, well-reasoned interpretations of their regulations. They must ensure that their interpretations are consistent with the regulation's text and purpose, and that they reflect the agency's expertise and considered judgment.

Judicial Responsibilities

Courts have the duty to carefully scrutinize agency interpretations before applying Auer deference. They must engage in a thorough analysis to determine whether deference is warranted, balancing the need for agency flexibility with the principles of fair notice and consistent application of the law.

Rights of Regulated Parties

Regulated parties have the right to challenge agency interpretations and to argue against the application of Auer deference. They can present evidence that an interpretation is unreasonable, inconsistent with the regulation's text, or fails to meet the other criteria established by the Supreme Court.

Common Issues and Challenges

Predictability and Stability of Federal Law

One of the primary criticisms of Auer deference is its potential impact on the stability and predictability of federal law. As noted in a brief submitted to the Texas Attorney General, "The predictability and stability of federal law is especially hindered by a form of deference that" allows agencies to change interpretations with limited judicial oversight.

Separation of Powers Concerns

Critics argue that Auer deference raises separation of powers issues by giving agencies too much authority to interpret their own regulations. This concern was addressed in part by the Kisor decision, which emphasized the limits of the doctrine and the court's role in scrutinizing agency interpretations.

Fair Notice

There are concerns that Auer deference may undermine the principle of fair notice, as regulated parties may not be able to rely on the text of regulations alone to understand their obligations.

Recent Developments and Proposed Changes

The Kisor v. Wilkie decision in 2019 represented a significant development in the doctrine of Auer deference. While the Court declined to overrule Auer entirely, it substantially narrowed its application and provided a more structured framework for courts to follow.

Some legal scholars and policymakers have called for further reforms or even the complete elimination of Auer deference. These proposals range from statutory changes to limit agency deference to constitutional challenges based on separation of powers principles.

Resources for Further Information

For those seeking to deepen their understanding of Auer deference and related administrative law concepts, several resources are available:

  1. The Supreme Court's opinion in Kisor v. Wilkie provides a comprehensive overview of the current state of Auer deference.
  2. The Congressional Research Service report on Chevron Deference offers valuable context on the broader landscape of agency deference doctrines.
  3. For scholarly perspectives on the doctrine, the amicus brief submitted by administrative law scholars in Kisor v. Wilkie provides insights into the academic debate surrounding Auer deference.

In conclusion, Auer deference remains a complex and evolving doctrine in administrative law. Its scope has been narrowed in recent years, but it continues to play a significant role in shaping how courts review agency interpretations of regulations. As debates over the proper balance of power between agencies and courts continue, understanding the nuances of Auer deference will remain crucial for legal practitioners, policymakers, and regulated entities alike.

About the author
Von Wooding, Esq.

Von Wooding, Esq.

Lawyer and Founder

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