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

While Chevron U.S.A. v. Natural Resources Defense Council and Auer v. Robbins have been tweaked by subsequent opinions in the Supreme Court, their broad structure remains applicable, at least for today. Under Chevron, courts apply a two-step process in considering an interpretation of a statute by the agency authorized to implement it, an interpretation often found in a regulation promulgated by the agency. First, the courts ask “whether Congress has directly spoken to the precise question at issue” such that its “intent … is clear,” in which case “the unambiguously expressed intent controls.” Second, if instead the statute is “silent or ambiguous with respect to the specific issue,” the courts will defer to the agency's interpretation, provided that the interpretation is reasonable.

Auer deference is similar and related, but applies to agency interpretations of regulations (rather than agency interpretations of statutes). In Auer and the earlier case it cited, Bowles v. Seminole Rock & Sand, 325 U.S. 410 (1945), the court found that an agency's interpretation of its own regulation was controlling unless it was “plainly erroneous or inconsistent with the regulation.”

Hints From Current Justices

Even though Justice Kennedy is no longer on the Supreme Court, other justices have also expressed their willingness to rethink deference. Justice Clarence Thomas called for a reexamination in his concurring opinion in Michigan v. EPA: “We should stop to consider the Constitution before blithely giving the force of law to any other agency 'interpretations' of federal statutes.” In Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149-58 (10th Cir. 2016), while on the U.S. Court of Appeals for the Tenth Circuit, then-Judge Neil Gorsuch in a concurrence engaged in an extensive criticism of Chevron deference that concluded: “We managed to live with the administrative state before Chevron. We could do it again.”

Other current justices have suggested openness to limiting Chevron deference in some circumstances. In City of Arlington, Texas v. Federal Communications Commission, Chief Justice John Roberts dissented over the court's use of Chevron to defer to an agency interpretation of a statute that concerned the agency's own scope of authority, and was joined by Justices Kennedy and Alito. 569 U.S. 290, 312-28 (2013). Later, in King v. Burwell, in another opinion by the Chief Justice, this time joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, the Court declined to apply Chevron deference to an issue of statutory interpretation because of the “extraordinary” importance of the issues raised. 135 S. Ct. 2480, 2485, 2488-89 (2015). (A recent D.C. Circuit dissent by Judge Kavanaugh similarly held that Chevron's scope was limited when an agency considers a “major rule,” see U.S. Telecom Association v. FCC, 855 F.3d 381, 418-22 (D.C. Cir. 2017).) And in SAS Institute v. Iancu, the court's opinion, written by Justice Gorsuch and joined by the chief justice and Justices Kennedy, Thomas and Alito, went out of its way not to embrace Chevron, “leaving for another day” the question “whether Chevron should remain.” Even the dissenting justices would not have applied Chevron as “a rigid, black-letter rule of law” but “as a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have.”

Meanwhile, deference to agency interpretations of regulations à la Auer (and its predecessor Seminole Rock) has also faced criticism. In Decker v. Northwest Environmental Defense Center, Chief Justice Roberts wrote a concurrence, joined by Justice Alito, about the “serious questions” raised by such deference and noted that “it may be appropriate to reconsider that principle in an appropriate case.” In Perez v. Mortgage Bankers Association, Justices Alito and Thomas both wrote concurrences noting concerns with this doctrine and calling for reconsideration. Later, Justice Gorsuch joined Justice Thomas in dissenting from a denial of certiorari in Garco Construction v. Speer—a dissent that criticized Auer deference as “constitutionally suspect” and “on its last gasp.”

Prepare Now

Anyone whose interests are affected by debatable agency interpretations of the law has an interest in monitoring what happens with Chevron and Auer, and in considering in advance how best to position themselves for potential change. If Chevron or Auer is limited or overturned, agency interpretations would receive less deference in the courts, and established agency positions would be more susceptible to attack.

A good first step for lawyers—in general counsel's offices, private practice, nonprofit organizations, the government and elsewhere—would be to catalog the regulations that both strongly affect their clients' interests and rest on questionable interpretations of the underlying statutes. Even those regulations (and other statutory interpretations) that courts have upheld would be subject to re-examination if they were upheld only due to Chevron. Similarly, clients will have an interest in understanding which agency interpretations of regulations—even longstanding interpretations—may not survive once Auer's hour is up. While cataloguing all the ways that modification of Chevron or Auer could make a meaningful difference may be a daunting and broad-ranging task given all the ways government regulation pervades modern America, a savvy lawyer benefits from doing work when there is time to think and plan—not, for instance, in the immediate aftermath of a Supreme Court blockbuster.

With that catalog (or even without), the proactive lawyer can prepare both offensive strategies as to agency interpretations that harm their clients' interests and defensive strategies as to agency interpretations that promote those interests. On the offensive side, a reduction in deference will make it easier to challenge a regulation or other agency interpretation. And if a client wants to do so, litigation counsel should challenge that interpretation as early as possible to ensure that such issues are preserved for review even if it is only years from now that the Supreme Court does cut back on Chevron or Auer. Most lawyers would not want to be in a position of expressing regret to their clients later for their lack of foresight in preserving an important issue—especially given all the hints the Supreme Court has dropped. And, being even more proactive, lawyers can propose to their clients that they petition for rulemaking to change rules that would be vulnerable under a new deference regime, rather than wait to raise these arguments after being subjected to an enforcement action.

But what if the current interpretation is favorable for a client? Lawyers may want to prepare to defend an agency as amicus curiae or even intervenor, ready to jump in with arguments explaining that the agency's existing interpretation of a statute or regulation is not just reasonable, but the right interpretation. And even those who benefit from an agency's position might consider strategic use of petitions for rulemaking (or other, gentler forms of advocacy) to encourage the agency to achieve the same or a substantially similar policy end through more defensible means. That might mean paring back on a regulation that goes a bit farther than the statute seems to contemplate, or making sure a regulation's language squarely comports with the agency's interpretation of the regulation. These tactics may make favorable agency interpretations less attractive to challenge.

Finally, lawyers should be prepared for the possibility that legislation could become increasingly necessary as courts engage in more searching review of agency interpretations. If there is an ambiguity in a statute, Chevron currently allows an agency to fill in that ambiguity, but without Chevron, courts may highlight issues with a statute and put the onus on Congress to resolve them. If Congress does take a more active role in the management of the administrative state—quite a big if, to be sure—litigation counsel should be prepared to address the retroactivity of any legislation, with potential constitutional limitations on what Congress can do.

All of this is to say that administrative law has the potential to undergo transformative changes over the next few years. If Chevron or Auer is limited or overturned, courts will begin to engage in more probing reviews of an agency's positions. Lawyers do not want to be caught unaware of such developments in the law, and should prepare.

Todd S. Kim, a partner at Reed Smith, focueses his practice on appellate litigation and most recently served as the first Solicitor General for the District of Columbia.

Joshua T. Newborn is an associate in firm's appellate group. He has drafted briefs in federal and state appellate courts, and has also participated in trial court litigation to develop trial strategy in anticipation of an appeal and to petition for discretionary appellate review.