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Date: May 2018
From: Harvard Law Review(Vol. 131, Issue 7)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 16,700 words
Lexile Measure: 1710L

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C. Reliance and Consistency

Fuller contended that a purported legal system may fail to qualify as such as a result of "introducing such frequent changes in the rules that the subject cannot orient his action by them." (169) With a point of that kind in mind, administrative law has long been concerned with the consistency, over time, of agency decisionmaking, both in rulemaking and in adjudication. (170) A closely related concern involves reliance by regulated parties, including but not limited to economic actors who must plan long-term investments or other projects in a regulatory environment. Although consistency has value even apart from reliance interests --a measure of consistency in the carrying out of plans over time is arguably constitutive of rationality--as a practical matter, protecting justified reliance is a core aim of administrative law doctrines that attempt to promote consistency. Consistent with Fuller's own discussion, (171) we will treat the two ideas together.

i. Auer Deference and Skidmore Deference.--Let us begin in a slightly unusual place, with so-called Auer deference to agency interpretations of their own regulations. Auer has been the site for a great deal of opposition and contest in recent years, and skeptics have objected to the underlying rationale of the rulings that preceded and gave rise to it. (172) Some Justices and commentators have called for abolishing Auer altogether. (173) However, in Perez v. Mortgage Bankers Ass'n, (174) six Justices--including the Chief Justice and Justice Kennedy--instead laid out a set of constraints on Auer, prominently including an emphasis on consistency:

Even in cases where an agency's interpretation receives Auer deference, however, it is the court that ultimately decides whether a given regulation means what the agency says. Moreover, Auer deference is not an inexorable command in all cases. See Christopher v. SmithKline Beecham Corp., 567 U.S. [142, 155] (2012) (Auer deference is inappropriate "when the agency's interpretation is plainly erroneous or inconsistent with the regulation" or "when there is reason to suspect that the agency's interpretation does not reflect the agency's fair and considered judgment" (internal quotation marks omitted)); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 ... (1994) ("[A]n agency's interpretation of a ... regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view" (internal quotation marks omitted)). (175)

Here the Court offers three important constraints on Auer: (i) plain inconsistency between the regulation and the agency's interpretation--itself a question for the court; (2) lack of "fair and considered judgment" (176) by the agency; (177) and (3) inconsistent interpretations over time, which are entitled to "considerably less deference" (178) than a consistently held agency view.

In Mortgage Bankers, the Court did not explain why, exactly, inconsistent interpretations over time are especially problematic in an Auer setting. (179) (As we will see, the official view in the related setting of Chevron deference is that inconsistency of agency interpretation over time is not a problem and is indeed entirely compatible with the rationales for...

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Gale Document Number: GALE|A572716420