Derek A. Woodman · October 2014
82 GEO. WASH. L. REV. 1721 (2014)
Since 1945, the Supreme Court has struggled to determine the level of deference that is due to an agency’s interpretation of regulations that the agency promulgates. For decades, and with little discussion, the Supreme Court has given an agency interpretation controlling weight. Concerned with the power of administrative agencies, the Supreme Court appears ready to re-examine its deference jurisprudence.
This Essay suggests that the Court has repeatedly focused throughout its opinions on the notice provided by an agency interpretation of a regulation. Relying in part on the recent resurgence of the due-process-notice doctrine, this Essay argues that courts should explicitly recognize the due-process-notice principles that underlie the Auer deference analysis and incorporate those principles when considering whether an agency’s regulatory interpretation receives controlling deference. These notice principles provide a coherent rationale and structure for the otherwise disjointed Auer deference doctrine. Furthermore, placing due-process-notice limits on Auer deference ensures that regulated parties are fully aware of the burdens that an agency imposes on them and prevents agencies from abusing their power to regulate.
