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Supreme Court building. February 7, 2007. Credit: Diego M. Radzinschi/LEGAL TIMES. Supreme Court building. February 7, 2007. Credit: Diego M. Radzinschi/LEGAL TIMES.

In 1989, the late Justice Antonin Scalia authored one of the seminal opinions on deference to administrative agencies. In Auer v. Robbins, 519 U.S. 452 (1997), he famously reaffirmed a long-standing rule of administrative deference dating back to Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945): When the meaning of an administrative regulation is in doubt, the agency’s interpretation of the regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” Id. (internal quotations omitted). Deference will be given even to informal interpretations that are not adopted through rulemaking or formal adjudication under the Administrative Procedure Act (APA). By 2011, however, Justice Scalia had made an about-face: “[W]hile I have in the past uncritically accepted [the Auer] rule, I have become increasingly doubtful of its validity.” Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring).

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