<i> Auer </i> Deference Should Be Dead; Long Live <i> Seminole Rock </i> Deference

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning.

These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which is consistent with how the Court viewed its deference decision in the original Seminole Rock case. Understanding the different roles of judicial review that distinguish between interpretation and policymaking has special import for agencies that regulate industries characterized by rapid technological change with agency personnel charged with making policy decisions that are technically complex, such as communications and environmental protection.