Enough Is Enough: Justice Scalia, Auer Deference, and Judicial Duty
It is one of the most fundamental principles of Anglo-American law: No person may be a judge in his own cause. Famously articulated by Sir Edward Coke, elaborated upon by John Locke and Baron de Montesquieu, and invoked by Alexander Hamilton and James Madison in the Federalist Papers, this principle is grounded in the recognition that human beings are fallible and are apt to be (as Locke put it) “biased by their interest.” Justice Antonin Scalia’s commitment to ensuring that it remained operative was vividly exemplified in his reconsideration and fierce criticism of a longstanding administrative law doctrine that contradicts it—and enables federal agencies to operate free of any meaningful public accountability or judicial check.
In a concurrence in the recent case of Perez v. Mortgage Bankers Assn (2015), Justice Scalia expressly called for the Court to abandon a judge-made doctrine, associated with Auer v. Robbins (1997), which holds that judges must generally defer to agencies’ interpretations of their own regulations. Thus, if the EPA interprets a complex decontamination regulation to require a hazardous waste facility to dispose of solvents through a particular means, that interpretation must be sustained by a reviewing court, even if the interpretation took years to settle upon, different EPA offices understood the regulation in different ways, and the EPA’s interpretation “would not exactly leap out at even the most astute reader.” This concurrence marked the second time that Scalia (who authored the Court’s opinion in Auer) called upon the Court to reject “Auer deference” and to make plain that courts must decide what agencies’ regulations actually mean, “with no deference” to agencies’ interpretations. As Scalia previously stated in his lone dissent in Decker v. Northwest Environmental Defense Center (2013), “Auer deference” effectively places “the power to write a law and the power to interpret it in the same hands” and thus “contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.”
Where did Auer deference come from? In Auer, Justice Scalia cited the Court’s decision in Bowles v. Seminole Rock & Sand Co. (1945), in which the Court stated that the “ultimate criterion” in interpreting agency regulations “is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” The rule articulated in Seminole Rock was later applied uniformly in cases involving challenges to agencies’ interpretations of their regulations. It was justified in functional terms: Courts should defer to agencies’ interpretation of their own regulations because of agency’s presumed expertise and experience.
In his Decker dissent, Scalia expressed regret at having “uncritically accept[ed]” Auer/Seminole Rock deference, which has proven pernicious in practice. It enables agencies to pass vague regulations and construe them opportunistically, confident that they will be upheld by any reviewing court. Special interest groups who stand to reap concentrated benefits from agency policy can pressure agencies to construe those regulations to serve their ends, at the expense of the public at large. This is not an abstract problem, of interest only to administrative law devotees. Owing to the breadth of human activity that is regulated by a federal government, Auer deference leaves vast areas of American life subject to essentially arbitrary government power—power unconstrained by anything other than the will of unelected power-holders. How agencies interpret their regulations can determine whether someone ends up facing civil or even criminal penalties as a result of (to cite a few examples) developing property on land that contains waters usable as a habitat for migratory birds, storing property in public park during a demonstration, or failing to pay wages to union representatives who accompany OSHA officials during an inspection. Abject judicial deference to agency interpretations can have grave consequences for ordinary citizens seeking to plan their affairs and peacefully pursue their American dreams without fear of having them suddenly shattered.
What does the Constitution have to say about Auer deference? As Phillip Hamburger explains in his invaluable book, Law and Judicial Duty, the duty to exercise independent judgment in interpreting and giving effect to the law is a central feature of the judicial office. Judicial independence consists not merely in life tenure or undiminished salaries but in impartiality—the absence of any predisposition towards either party in a controversy. Adherence to the duty of independent judgment is critical if the judicial power vested in the courts by Article III is to perform its function, namely, ensuring that Americans are ruled by the law of the land, not by the will of men.
By requiring judges to defer to the will of government officials and systematically predisposing judges to rule on behalf of a particular party (the government), Auer deference requires judges to abdicate their duty of independent judgment and, thus, violate the Article from which they draw their authority. There is no context in which judges may properly decline to determine what the meaning of the law is (as distinct from what government officials think it is or wish it were) or tip the scales of justice towards one party. Every case involving a plausible abuse of government power demands judicial engagement: a logic-guided, impartial effort to determine what the meaning of the law is and whether the government’s actions are consistent with it.
As Justice Scalia put it in his Perez concurrence, “there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means”—perhaps more weighty than even the Framers imagined, given what public choice scholarship has disclosed about the incentives that face government officials to act against the “permanent and aggregate interests of the community.” It is to be hoped that the Court will honor the principle that Justice Scalia defended by holding, in an appropriate case, that “Enough is enough.”
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