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At the dawn of the modern administrative state, the Supreme Court held, in Bowles v. Seminole Rock & Sand Company, that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” A half century later, the Court retained that approach in Auer v. Robbins, a decision authored by Justice Scalia. Auer deference is generally regarded as the most accommodating standard of judicial review applied by courts to agency decision-making.

Although the Supreme Court created Seminole Rock/Auer deference more than seventy years ago, the Court has created exceptions to the doctrine over the years and Justices Scalia, Thomas, Roberts and Alito have questioned or criticized the basic premise of the doctrine in recent years. Further, legislators have indicated their displeasure with Auer deference by introducing bills in Congress in 2016 and 2017 that would require courts to interpret the constitution, statutes and regulations de novo, rather than to accord agencies deference under Auer or Chevron.

While legislators and a few Supreme Court Justices are suggesting that Auer deference should be narrowed or eliminated, critics are concerned that some federal courts may be expanding the reach of Auer and according that level of deference to agency interpretations of guidance that interprets regulations, as opposed to simply interpretations of regulations. Those critics refer to this as “second level” Auer deference. This concern was raised most recently in a petition for certiorari to the United States Supreme Court filed by the Pacific Legal Foundation (“PLF”) in Foster v. Vilsack. PLF argued that the United States Court of Appeals for the Eighth Circuit inappropriately accorded Auer deference to he Natural Resource Conservation Service’s interpretation of a guidance document interpreting a regulation when the court upheld the agency’s determination that the petitioners, Arlen and Cindy Foster, were converting wetlands to farmland in violation of the Food Security Act of 1985. ...

Part I of this Article begins by examining several cases cited by PLF in its cert. petition to determine whether there is, as PLF asserts, a trend toward “second level Auer deference” in the federal courts. Part II of the Article focuses on the traditional application of the Auer standard, exceptions to the standard, the rationales for the standard, criticisms raised to the application of the standard and several suggestions advanced by academics to reform the standard. Part III then outlines the reasons why courts should accord Skidmore, Auer or a modified version of Auer deference when reviewing an agency’s interpretation of its own guidance interpreting regulations.