Alito on Deferring to Agency Interpretation of It’s Own Ambiguous Regulatoins

June 18th, 2012

Our practice of deferring to an agency’s interpretationof its own ambiguous regulations undoubtedly has important advantages,17 but this practice also creates a riskthat agencies will promulgate vague and open-endedregulations that they can later interpret as they see fit,thereby “frustrat[ing] the notice and predictability purposes of rulemaking.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (SCALIA, J., concurring) (slip op., at 3); see also Stephenson & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 14611462 (2011); Manning, Constitutional Structure and  Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 655668 (1996). It is one thing to expect regulated parties to conform their conductto an agency’s interpretations once the agency announcesthem; it is quite another to require regulated parties todivine the agency’s interpretations in advance or else be held liable when the agency announces its interpretationsfor the first time in an enforcement proceeding and demands deference.

Accordingly, whatever the general merits of Auer deference, it is unwarranted here. We instead accord the Department’s interpretation a measure of deference proportional to the “‘thoroughness evident in its consideration,the validity of its reasoning, its consistency with earlierand later pronouncements, and all those factors which give it power to persuade.’” United States v. Mead Corp., 533 U. S. 218, 228 (2001) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)).

Christopher v. SmithKline Beecham Corp.