Auer deference

Auer deference, courts deferring to agencies’ reasonable interpretations of their ambiguous regulations, is alive following the Supreme Court’s decision in Kisor v. Wilkie. But, in the opinion of a few Justices, it is only on life support.

The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Supreme Court to overturn Auer v. Robbins (1997). In that case the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945), that courts must defer to an agency’s interpretation of its own regulations.

As discussed in the SLLC amicus brief, states and local governments object to Auer deference because it gives agencies a lot of power. They both write regulations and may interpret them as they like without significant court scrutiny. Agencies aren’t required to receive notice-and-comment related to their interpretations of regulations. New administrations may change the interpretations at their whim. And agencies may purposely write ambiguous regulations knowing courts will defer to their interpretations of them. If Auer deference wasn’t available, courts would interpret regulations without deferring to agency interpretations of them.     

The State and Local Legal Center (SLLC) filed an amicus brief in Kisor v. Wilkie asking the Supreme Court to overturn Auer v. Robbins (1997). It that case the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to an agency’s interpretation of its own regulations.

In Kisor v. Wilkie the Federal Circuit deferred to the Veterans Administration’s (VA) definition of “relevant” when determining whether a veteran’s claim for benefits can be reconsidered.

The State and Local Legal Center (SLLC) has been waiting for this day for a long time. In Kisor v. Wilkie the Supreme Court will decide whether to overturn Auer deference to federal agencies.

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to a federal agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).

State and local governments have long been critical of Auer deference of a number of reasons. First, it gives agencies a lot of authority in every area in which any agency regulates. Second, Auer deference negatively affects state and local governments because they are regulated by federal agencies and regulate in the same space as federal agencies.

The Court’s grant of this petition isn’t all that surprising. Neither will it be surprising if the Court overturns Auer deference. Recently, all five of the conservative Justices, except Justice Kavanaugh—perhaps only due to his short tenure on the Court, have either written or joined an opinion criticizing Auer deference or agency deference more generally.

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

The facts of Gloucester County School Board v. G.G. could not be simpler. But the legal issue is complicated.

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