Libertarians are no fans of the administrative state. It consists of agencies with the power to generate rules that are binding on citizens. Congress, the branch of government that our founders anticipated would “necessarily predominate” in a republican form of government, first arrogated to itself vast powers beyond their contemplation, and then delegated these powers to the executive branch. The courts have, through a series of key cases, abided this abdication of responsibility. Moreover, the courts have derelicted their own duty to dispositively rule on the acceptable interpretations of an agency’s authorizing statute, a doctrine known as Chevron deference. So too have courts allowed agencies to interpret their own formal rules, a doctrine known as Auer deference. While this latter practice dates to a 1945 case (Bowles v. Seminole Rock), it was not explicitly condoned until the Auer case in 1997. (For a very good summary of Auer and a compelling argument as to why it should be overturned, please see my Cato colleagues’ amicus brief).
These two doctrines allow for administrative agencies to exercise considerable discretion within the ambiguity – intentional or otherwise – of a statutory or regulatory text. An agency has maximum interpretive latitude when it is acting pursuant to a vaguely worded statute, but it is up to Congress to give it this long leash. Yet an agency does control the specificity of the rules which it promulgates via APA-mandated notice-and-comment procedures. In order to maximize their subsequent room to maneuver, agencies might seek to craft rules that capaciously allow for creative construal down the road. But their willingness to do so is constrained by their expectation that their interpretation will be challenged, and potentially overturned, in court. Auer, alleges it critics, gives agencies a green light to “self-delegate” via promulgating vague rules with the foreknowledge that subsequent interpretations will not be overturned by the courts.
Read more at https://www.cato.org/blog/testing-effects-auer-deference
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