n his 2015 opinion concurring in the judgment of Perez v. Mortgage Bankers Association, Justice Antonin Scalia announced that he would be “abandoning” the holding in Auer v. Robbins at the first opportunity, a position that he had telegraphed in his 2011 concurring opinion in Talk America, Inc. v. Michigan Bell Telephone Co. and in his 2013 opinion concurring and dissenting in part in Decker v. Northwest Environmental Defense Center. Because of his untimely death the following February, he never got that opportunity, but his statement in Perez was nonetheless extraordinary because Scalia was himself the author of the court’s opinion in Auer. If even Scalia was willing to abandon the so-called Auer doctrine, it must be on very thin ice indeed.

This week, the Supreme Court granted review in Kisor v. O’Rourke, and of the two questions presented in the petition, agreed to consider only the first: “Whether the Court should overrule Auer and Seminole Rock” in deciding whether the Department of Veteran’s Affairs properly interpreted its own regulation addressing when a veteran’s request to reopen a claim for PTSD benefits should be granted.

For non-administrative law geeks, Auer and its predecessor, Bowles v. Seminole Rock & Sand Co., decided 50 years apart in 1997 and 1945 respectively, both held that the courts should defer to an executive agency’s interpretation of its own ambiguous regulations (regulations which were in turn often adopted to give meaning to ambiguous statutes, to which the courts also defer under Chevron step-two deference, but that’s another matter). Because the interpretation was “a creature of the [agency’s] own regulations,” the court stated in Auer, its “interpretation of [its regulation] is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation.”

In the 20 years since Auer was decided, however, several members of the Supreme Court have grown increasingly critical of the Auer doctrine, recognizing that it has exacerbated the non-delegation of legislative power problems that arise under Chevron, but that it has also amounted to an abdication of the judicial duty to interpret the law. That duty was recognized more than two centuries ago in the landmark 1803 case of Marbury v. Madison, and earlier by Alexander Hamilton, who wrote in Federalist No. 78 that “[t]he interpretation of the laws is the proper and peculiar province of the courts.”

In the same case in which Justice Scalia announced he would be abandoning Auer, for example, Justice Clarence Thomas penned a comprehensive criticism of the Auer doctrine as fundamentally incompatible with the Constitution’s core separation of powers principles. “Because this doctrine effects a transfer of the judicial power to an executive agency, it raises constitutional concerns,” he wrote, adding that “This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.”

Justice Samuel Alito appeared to agree with the concern, noting that “The opinions of Justice Scalia and Justice Thomas offer substantial reasons why the Seminole Rock doctrine may be incorrect.” And he announced that he, too, would “await a case in which the validity of Seminole Rock may be explored through full briefing and argument,” just as Chief Justice John Roberts (joined by Alito) had done two years earlier in the Decker case.

The Auer doctrine appeared to be on the chopping block when, in 2016, the Gloucester County School Board asked the Supreme Court to consider overruling Auer in its challenge to a U.S. Department of Education interpretive guidance letter mandating that schools allow transgender students to use the bathrooms and showers of their self-identified gender rather than their biological sex. But the court declined the opportunity, granting review on all but the “reconsider and overrule Auer” question presented. The high court then vacated the lower court’s judgment (which had ruled based on Auer deference to the guidance memo) and remanded for further consideration after the Trump administration revoked the guidance memo, thereby depriving even individual members of the Supreme Court of the opportunity to express further concerns about the Auer doctrine.

Twice since, the Supreme Court declined to grant review in cases in which the petition had urged the court to reconsider and overrule Auer, though over dissents from the denial in each case. The court denied review in United Student Aid Funds, Inc. v. Bible (2016), for example, over a dissent in which Justice Thomas noted that “Any reader of this Court’s opinions should think that the doctrine is on its last gasp.” And in his first full term on the court, Justice Neil Gorsuch (who had already expressed concern about Auer while a lower court judge) joined Justice Thomas in dissenting from denial of review in Garco Const., Inc. v. Speer (2018). Because both Chief Justice Roberts and Justice Alito had previously acknowledged the need for reconsideration of Auer in an appropriate case, there should have been the necessary four votes to grant review. Perhaps with Justice Anthony Kennedy still on the court (who’s opinion for the court in Decker relied heavily on Auer), there may have been some concern about whether there was a fifth vote to overrule Auer. Justice Kennedy’s retirement, and replacement by Justice Brett Kavanaugh, may have altered that calculus, however, because Kavanaugh had on several occasions while a circuit judge on the D.C. Circuit been a bit more stingy with Auer deference than Justice Kennedy had been.

In any event, a full reconsideration of Auer is now on the Supreme Court’s docket, and the doctrine is likely to be overruled for the violation of core separation of powers principles that it embodies.

This article was first published on the Los Angeles Daily Journal on December 13, 2018.