Justices Question Agency Deference Doctrine


On March 20, an environmental case before the Supreme Court spurred two opinions from three Justices that question the continuing vitality of the agency deference doctrine known as Auer deference. Decker v. Nw. Envtl. Defense Ctr., No. 11-338, slip op. (S. Ct. Mar. 20, 2013). Auer deference provides that a court should ordinarily defer to an agency’s view of its own regulation, so long as the agency’s view is not “plainly erroneous” or “inconsistent” with that regulation.  But in a partial dissent, Justice Scalia criticized the basis for the doctrine and attacked each of the three reasons why the doctrine is invoked. Justice Scalia was not alone. Two other justices—including Chief Justice Roberts—said that they also felt it was appropriate to reconsider Auer when the proper case presented itself. Reconsidering Auer could in turn effect a significant change in how many federal administrative cases—including cases involving banking and financial regulators—are handled.

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