The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules

Authors

Daniel E. Walters, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

1-2019

Journal Title

Columbia Law Review

ISSN

0010-1958

Abstract

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delega­tion thesis has never been tested.

This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My lin­guistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writ­ing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence.

These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the insti­tutional pressures and cognitive horizons that cause agencies to pur­sue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empiri­cal reality before unsettling settled law.

First Page

85

Last Page

168

Num Pages

84

Volume Number

119

Issue Number

1

Publisher

Columbia Law School

Recommended Citation

Daniel E. Walters, The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules, 119 Colum. L. Rev. 85 (2019).
Available at: https://scholarship.law.tamu.edu/facscholar/1573

File Type

PDF