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Jonathan Adler: Auer Evasions
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law; PERC - Property and Environment Research Center) has posted Auer Evasions (16 Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force of law in particular. This brief Article seeks to explain how the practice of Auer deference undermines – and facilitates the evasion of – basic administrative law principles of accountability, notice, responsibility and finality. After reviewing Auer history and considering these evasions, the Article ponders whether we are approaching Auer’s end.