Document Type
Article
Publication Date
2016
Abstract
To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, John Manning), violates “fundamental principles of separation of powers” by “permit[ing] the person who promulgates a law to interpret it as well.” On the other, Auer deference is also seen as uniquely at odds with the Administrative Procedure Act. Thus, Scalia criticized Auer not simply for deviating from the APA’s scope of judicial review provision but also for offering agencies a route to evading the APA’s notice-and-comment requirements by promulgating vague regulations that they can broadly interpret.
Disciplines
Administrative Law | Constitutional Law | Law
Recommended Citation
Gillian E. Metzger,
Auer as Administrative Common Law,
Yale J. on Reg. Notice & Comment, September 21, 2016
(2016).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4815