Matthew Mezger ·
84 Geo. Wash. L. Rev. 1335 ·
Though not directly at issue in Perez v. Mortgage Bankers Association, several of the Supreme Court Justices felt compelled to question the legal validity of Auer deference. This rule granting agencies deference when interpreting their ambiguous regulations has been a longstanding precedent in administrative law, but several Justices of the Supreme Court and members of the academic community are signaling that the rule is ready to be changed. Recognizing that Auer is being called into question, an emerging field of scholarship has developed to assess what the new legal rule should be if and when Auer is overruled. This Essay takes part in that debate and proposes that the Supreme Court should impose a stare decisis methodology for interpreting regulations. While many members of the academic community assert that Skidmore deference, the deference granted to agencies if their interpretation is persuasive, is the preferred approach to this deference question, this Essay demonstrates that tackling the challenges of Auer deference through interpretive methodology offers the better approach.
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