Chevron and Auer Deference from the Standpoint of Republican Theory

Over the past decade, America’s cornerstone administrative law doctrines of judicial deference to agency interpretations of law, as chiefly associated with the United States Supreme Court cases of Auer v. Robbins and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. cases, have come under fire. Such criticisms have come from members of the Supreme Court itself, including from the late Justice Scalia, who notably was the author of the opinion of the Court in Auer. This article connects and elucidates the theoretical aspects of republican political and legal theory that underpin many such criticisms. Relying upon the writings of Philip Pettit and other republican theoreticians, as well as judges and scholars of various disciplines, this article explains how republican theories can be used as a basis for determining whether individual rights, both fundamental and mundane, and the republican-inspired constitutional structures meant to serve as a hedge around them are being undermined by one or both of Auer or Chevron deference. Whereas Chevron deference is the most written about subject in American legal scholarship, this article does not attempt to analyze all arguments for or against deference. This article does attempt to explain how well the agency deference aspects of the American administrative litigation system lines up with republican political and legal theoretical norms. Most notably, implicated norms include separation of powers and the right of democratic contestation. Ultimately, the first conclusion drawn is that the Chevron doctrine is a key weakness of the American administrative litigation system that impermissibly stacks the odds against claimants, undermines fundamental notions of fair play necessary to properly check the oppressive behavior of the administrative state, and severely limits the ability to realize the benefits of separation of powers. If Chevron is deemed to be a key weakness of the American administrative legal system, the second conclusion of this article is that Auer is abhorrent to it. For Chevron deference instructs courts to give controlling weight to an agency’s reasonable interpretation of ambiguous statutory law passed by Congress. While that has some separation of powers implications, the problems get even worse with Auer, which mandates that judges give controlling weight to an agency’s interpretation of its own regulation. The Auer doctrine not only implicates serious separation of powers issues due to the agency writing, interpreting and implementing the relevant regulation, it also undermines the basic right of each person living in a democracy to contest power wielded against such person by the administrative state under the individual right of democratic contestation.