On Feb. 15, the U.S. Supreme Court considered a petition for certiorari urging the Supreme Court to get rid of the administrative law doctrine known as Auer deference. This doctrine gives agencies a blank check to interpret their own regulations, allows them to avoid notice and comment rulemaking and its provision for fair warning, and wrests from the judiciary its constitutional and statutory obligations to say what the law is. The court should take the case and discard Auer.

The Case

In the petition before the court, Garco Construction was awarded an August 2006 contract at Malmstrom Air Force Base in Great Falls, Montana. Given the limited labor pool, Garco's subcontractors often employed individuals with criminal backgrounds, including workers from Great Falls Pre-Release Center, a facility that helps prisoners transition back to society. When the contract was awarded, the “base access regulation” provided that workers' names would be checked against the National Crime Information Center system “for wants and warrants.”

Later in 2006, several workers were denied base access. After varying explanations, the base issued new regulations in October 2017 requiring a full background check and denying access to additional categories of individuals, including those in “a prerelease program.” The base denied Garco's request for increased work expenses arguing that the base had interpreted the August 2006 regulation to include these additional categories all along.

The U.S. Court of Appeals for the Federal Circuit sided with the base. Even though the base's interpretation of its regulation was not the most natural reading of the plain text of the base access regulation, the Federal Circuit deferred under Auer and adopted the base's interpretation anyway.

The Doctrine

Auer deference requires an Article III court to defer to an agency's interpretation of its own ambiguous regulation unless that interpretation is plainly erroneous or contrary to the regulation—a tough standard to meet. Auer deference, in other words, does not care whether the agency's interpretation is the best interpretation of the regulation; it may be erroneous, just not outrageously so. Indeed, the Supreme Court has only once found an administrative interpretation—an opinion letter that sought to make a permissive regulation mandatory—erroneous.

Agency deference is based on the progressive idea that expertise puts agencies in the best position to interpret ambiguous regulations. But agencies have no expertise in interpreting legal texts. That is the core role of Article III courts. As Alexander Hamilton put it in Federalist No. 78: “The interpretation of the laws is the proper and peculiar province of the courts.”

At least five sitting justices have expressed concerns over deference doctrines like Auer. And for good reason. The practice of giving administrative interpretations “controlling weight” turns the principle that the United States is “a government of laws, and not of men” on its head.

The Administrative Procedure Act

At the outset, Auer deference flouts the plain language of the Administrative Procedure Act (APA). The APA was passed by Congress to provide procedural rules to govern increasingly powerful agencies.

One of the most powerful constraints placed on agencies is the requirement that they enact regulations only after providing the public with notice and an opportunity to comment. Notice and comment rulemaking provides input for regulated entities and fair warning of the governing standards.

Auer deference makes the notice and comment provisions of the APA a protection in name only. Agencies are incentivized to write vague and open-ended regulations that they can later “interpret” in any number of ways to fit any number of situations. As this case demonstrates, Auer allows agencies to change the rules of conduct midstream. Agencies, moreover, are issuing guidance in increasingly informal ways—amicus briefs, internal directives, “dear colleague” letters, handbooks and even post-litigation communications. Thus, Justice Antonin Scalia described Auer deference as “a dangerous permission slip for the arrogation of power.”

Just as importantly, Auer deference relieves the judiciary of its required role under the APA. The APA requires the federal courts to “determine the meaning or applicability of the terms of agency action”—including an agency regulation. When federal courts accord controlling weight to an agency's interpretation of a regulation, they are abdicating their role under the APA.

The Constitution

The genius of the U.S. Constitution lies in its division of power among three co-equal branches of government. James Madison famously argued during the ratification debates that this separation of powers represented “the great security” for liberty in the Constitution.

The Framers thus housed the three main powers of government, legislative, executive and judicial in separate branches of government. They gave to Congress, for example, the power to “make law;” to the executive the power to “enforce” that law; and to the judiciary the power to interpret law, or to “say what the law is.”

Auer deference wrests from the judiciary the power to say what the law is. Because judges must accord “controlling weight” to the agency interpretation of a regulation (unless it is plainly erroneous), it is the agencies, rather than Article III judges, which have the ultimate say. This is made more troubling, of course, by the fact that the agencies were the ones to write the regulation in the first place.

All of this concentrated power presents serious questions about the constitutionality of Auer deference. As Justice Felix Frankfurter once observed, “[t]he accretion of dangerous power does not come in a day.” It comes instead from an “unchecked disregard of the restrictions” imposed by the Constitution.

The chief justice recently wrote that Auer deference involves an important question “going to the heart of administrative law.” The Garco petition presents the Supreme Court with an opportunity to re-examine Auer deference in light of the statutory and constitutional restrictions placed upon administrative agencies.

Erin Hawley is a legal fellow with the Independent Women's Forum and associate professor of law at the University of Missouri. Hawley is a former clerk to Chief Justice John G. Roberts Jr.