The deference doctrines associated with the U.S. Supreme Court’s landmark decisions in Chevron and Auer carry immense practical significance because they govern when courts must uphold agency interpretations of statutes and regulations in subject areas across the enormous administrative state. And so the world of administrative law was abuzz when, just before retiring, Justice Anthony Kennedy joined other justices who had called for reconsideration of “the premises that underlie Chevron and how courts have implemented that decision.” That concurrence in Pereira v. Sessions intensified ongoing speculation about whether the court might narrow or even overturn Chevron and Auer. So too did Justice Samuel Alito’s Pereira dissent, which surmised that the majority was “simply ignoring Chevron,” “an important, frequently invoked, once celebrated, and now increasingly maligned precedent” that unless overruled “in a secret decision that has somehow escaped his attention … remains good law.” And the nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to replace Justice Kennedy has only amplified the chatter about whether the Supreme Court soon will allow debatable agency interpretations of statutes and regulations to be overturned more easily.

While commentators disagree about whether these deference doctrines should be limited or eliminated, legal practitioners need to prepare for that possibility, with its attendant risks and opportunities.  Such a change would touch all lawyers with clients affected by agency interpretation of statutes and regulations—that is, pretty much all lawyers. So what steps should those lawyers be considering now in case the Supreme Court does overturn Chevron, Auer, or both, at least in their present forms?

A Brief Recap of ‘Chevron’ and ‘Auer’ Deference

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