No. 15-861 

 

IN THE 

Supreme Court of the United States 

___________ 

 

UNITED STUDENT AID FUNDS, INC., 

 

Petitioner, 

v. 

 

BRYANA BIBLE, individually and 

on behalf of the proposed class, 

 

Respondent. 

___________ 

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 
for the Seventh Circuit 

___________ 

 

BRIEF OF PROFESSOR PHILIP HAMBURGER AND 

WASHINGTON LEGAL FOUNDATION, 

AS AMICI CURIAE IN SUPPORT 

OF PETITIONER 

 ___________ 

 

 

 

 

 

 

 

 

 

February 5, 2016 

 

CORY L. ANDREWS 

 Counsel of Record 

MARK S. CHENOWETH 

JARED MCLAIN 

WASHINGTON LEGAL 

 FOUNDATION 

2009 Massachusetts Ave., NW 

Washington, DC 20036 

(202) 588-0302 

candrews@wlf.org 

 





QUESTION PRESENTED 

 Amici curiae address the following question 
only: 

 Whether Auer v. Robbins, 519 U.S. 452 (1997), 
and Bowles v. Seminole Rock & Sand Co., 325 U.S. 
410 (1945), should be overruled. 


 

TABLE OF CONTENTS 

 
TABLE OF AUTHORITIES ................................... v 
INTERESTS OF AMICI CURIAE .......................... 1 
INTRO & SUMMARY OF ARGUMENT ................ 3 
REASONS FOR GRANTING THE PETITION ..... 5 
I. REVIEW IS WARRANTED BECAUSE AUER 
REQUIRES JUDGES TO GIVE UP THEIR 
INDEPENDENT JUDGMENT IN VIOLATION 
OF ARTICLE III ............................................... 5 
A. Under Article III, Judges Have 
an Office or Duty to Exercise 
Their Own Independent 
Judgment in Each Case ..................... 6 


B. Auer Requires Judges to Violate 
Article III by Abandoning Their 
Independent Judgment ................... 11 

 

1. Congress may not alter the 
core duty of Article III 
judges ..................................... 12 

 

 2. Article III judges may not 
abdicate their core duty ........ 14 

 

 

 II. REVIEW IS WARRANTED BECAUSE, WHEN 
THE GOVERNMENT IS A PARTY, AUER 
REQUIRES JUDGES TO EXHIBIT 
SYSTEMATIC BIAS, IN VIOLATION OF THE 
FIFTH AMENDMENT’S DUE PROCESS 
CLAUSE ......................................................... 15 
A. The Fifth Amendment’s Due 
Process Clause Bars Judges from 
Deciding Cases with a 
Predisposition in Favor of a 
Party or Class of Parties ................. 16 


B. When the Government is a Party, 
Auer Violates Due Process by 
Requiring Judges to Exhibit 
Systematic Bias in Favor of the 
Government ..................................... 18 

 

III. AUER BRINGS THE JUDICIARY INTO 
DISREPUTE, THEREBY UNDERMINING 
PUBLIC CONFIDENCE IN THE COURTS ........... 21 
CONCLUSION ....................................................... 25 
TABLE OF AUTHORITIES 


Page(s) 

CASES 

 

Aetna Life Ins. Co. v. Lavoie, 

 475 U.S. 813 (1986) ............................................. 17 

 

Auer v. Robbins, 

 519 U.S. 452 (1997) ......................................passim 

 

Bowles v. Seminole Rock & Sand Co., 

 325 U.S. 410 (1945) ......................................... 2, 24 

 

Caperton v. A.T. Massey Coal Co., 

 556 U.S. 868 (2009) ............................................. 17 

 

Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 

 Inc., 467 U.S. 837, 866 (1984) ......................... 5, 20 

 

Christopher v. SmithKline Beecham Corp., 

 132 S. Ct. 2156 (2012) ..................................... 2, 19 

 

Commonwealth Coatings Corp. v. Cont’l Cas. Co., 
393 U.S. 145 (1968) ............................................ 16 

 

Decker v. Nw. Env. Def. Ctr., 

 133 S. Ct. 1326 (2013) ......................................... 24 

 

FCC v. Fox TV Stations, Inc., 

 132 S. Ct. 2307 (2012) ......................................... 20 

 

Georgia v. Brailsford, 

 2 U.S. 415 (1793) ................................................. 10 

 


Page(s) 

Haines v. Liggett Group, 

 975 F.2d 81 (3d Cir. 1992) .................................. 16 

 

Hudson v. United States, 

 522 U.S. 93 (1997) ......................................... 19, 20 

 

In re Murchison, 

 349 U.S. 133 (1955) ....................................... 16, 17 

 

Marbury v. Madison, 

 5 U.S. 137 (1803) ..................................... 3, 4, 6, 15 

 

Marshall v. Jerrico, Inc., 

 446 U.S. 238 (1980) ....................................... 16, 17 

 

Martin v. Hunter’s Lessee, 

 14 U.S. 304 (1816) ............................................... 13 

 

Miller v. Johnson, 

 515 U.S. 900 (1995) ............................................. 14 

 

Perez v. Mortgage Bankers Ass’n, 

 135 S. Ct. 1199 (2015) ................................. 2, 3, 24 

 

Prohibition del Roy, 

 12 Co. Rep. 63 (1608) ............................................ 7 

 

Respublica v. Oswald, 

 1 U.S. 319 (1788) ........................................... 12, 13 

 

The Julia, 

 14 F. Cas. 27 (C.C.D. Mass. 1813) ...................... 10 

 

 


Page(s) 

United States v. Burr, 

 25 F. Cas. 2 (C.C.D. Va. 1807) ............................ 10 

 

United States v. Nixon, 

 418 U.S. 683 (1974) ............................................. 14 

 

Yakus v. United States, 

 312 U.S. 414 (1944) ............................................. 13 

 

Yarborough v. Alvarado, 

 541 U.S. 652 (2004) ....................................... 14, 15 

 

CONSTITUTIONAL PROVISIONS 

 

U.S. Const. amend. V ............................................. 16 

 

U.S. Const. art. III ................................. 6, 12, 14, 15 

 

U.S. Const. art. III, § 1 ..................................... 6, 8, 9 

 

STATUTES 

 

5 U.S.C. § 551(4) ....................................................... 5 

 

OTHER SOURCES 

 

Stephen Breyer, Judicial Review of Questions 

 of Law and Policy, 38 Admin. L. Rev. 

 363 (1986) ............................................................ 10 

 

The Declaration of Independence (U.S. 1776) ......... 7 

 

The Federalist No. 10 (James Madison) ................ 17 

 


Page(s) 

The Federalist No. 78 (Alexander Hamilton) .......... 9 

 

Philip Hamburger, Is Administrative Law 

 Unlawful? (2014) ......................................... 7, 8, 16 

 

Philip Hamburger, Law and Judicial 

 Duty (2008) .................................................. 6, 7, 10 

 

James Iredell, To the Public, N.C. Gazette 

 (Newbern) (Aug. 17, 1786) .................................... 9 

 

Judicial Conference of the United States, 

 Code of Conduct for United States 

 Judges (2009) ...................................................... 23 

 

Douglas W. Kmiec, Judicial Deference to 

 Executive Agencies and the Decline of 

 the Nondelegation Doctrine, 2 Admin. L.J. 

 269 (1988) ............................................................ 11 

 

John Locke, Two Treatises of Government 

 (Peter Laslett ed., Cambridge Univ. Press 

 1988) (1690) ......................................................... 22 

 

John F. Manning, Constitutional Structure and 
Judicial Deference to Agency Interpretations of 
Agency Rules, 96 Colum. L. Rev. 612 (1996) ..... 11 

 

Charles de Montesquieu, Spirit of the Laws 

 (O. Piest ed., T. Nugent trans. 1949) (1748) .... 7, 8 

 

Records of the Federal Convention of 1787 

 (Max Farrand ed., Yale Univ. Press 1911) ....... 8, 9 

 


Page(s) 

Kathryn A. Watts, Rulemaking as Legislating, 

 130 Geo. L.J. 1003 (2015) ................................... 11 

 

 

 

 

 

 

 


INTERESTS OF AMICI CURIAE1 

1 Pursuant to Supreme Court Rule 37.6, amici state 
that no counsel for a party authored this brief in whole or in 
part; and that no person or entity, other than amici and their 
counsel, made a monetary contribution intended to fund the 
preparation and submission of this brief. Pursuant to Supreme 
Court Rule 37.2(a), more than 10 days prior to the due date for 
this brief, counsel for amici notified counsel of record for all 
parties of amici’s intention to file. All parties to this dispute 
have consented to the filing of this brief, and letters of consent 
have been lodged with the Court. 

 

 

 

Philip Hamburger is the Maurice and Hilda 
Friedman Professor of Law at the Columbia 
University School of Law, where his scholarship 
concentrates on constitutional law, administrative 
power, and their history. The author of dozens of law 
review articles and three scholarly books, including 
Is Administrative Law Unlawful? (Univ. of Chicago 
Press, 2014), Professor Hamburger’s work has 
chronicled the steady aggrandizement of power by 
the administrative state. Professor Hamburger 
believes that Auer deference raises serious 
constitutional concerns, not only by abandoning the 
judges’ constitutional office of independent 
judgment, but also by subjecting litigants to judicial 
bias, in violation of the due process of law. 

 

Washington Legal Foundation (WLF) is a 
nonprofit, public-interest law firm and policy center 
with supporters in all 50 states. WLF devotes a 
substantial portion of its resources to promoting free 
enterprise, individual rights, a limited and 


accountable government, and the rule of law. To that 
end, WLF has frequently appeared as amicus curiae 
in this and other federal courts to advance its view 
that government agencies should not be accorded 
undue deference. See, e.g., Perez v. Mortgage Bankers 
Ass’n, 135 S. Ct. 1199 (2015); Christopher v. 
SmithKline Beecham Corp., 132 S. Ct. 2156 (2012). 

 

Amici believe that the office enjoyed by judges 
under Article III of the Constitution is one of 
independent judgment, not deference, heightened 
respect, or other predisposed bias toward the most 
powerful of parties—the federal government. Such 
deference represents a dramatic departure from 
judicial independence, due process, and the rule of 
law. Even where agencies receive statutory 
authorization to interpret rules and regulations for 
their own purposes, serious constitutional questions 
persist about the role of judges and the specter of 
systematic bias. 

 

Amici fear that if the Court allows the rule of 
deference announced in Auer v. Robbins, 519 U.S. 
452 (1997), and Bowles v. Seminole Rock & Sand 
Co., 325 U.S. 410 (1945), to stand, it will sanction a 
profound and ongoing injustice that damages its 
reputation. To preserve the Judiciary’s legitimacy, 
this Court should grant the petition and use this 
case as the vehicle for rejecting Auer and Seminole 
Rock once and for all. 

 

 

 


INTRODUCTION AND 

SUMMARY OF ARGUMENT 

 

The petition presents a question of exceptional 
importance: How much deference, if any, do federal 
courts owe to an administrative agency’s 
interpretation of its own regulation? The default rule 
announced in Auer v. Robbins, which requires 
reviewing courts “to ‘decide’ that the text means 
what the agency says,” Perez, 135 S. Ct. at 1212 
(Scalia, J., concurring in the judgment), requires 
Article III judges to abandon their office and duty of 
independent judgment, and to engage in systematic 
bias, in violation of the Fifth Amendment’s 
guarantee of due process of law. As shown below, 
this dangerous departure from judicial office and due 
process has profound consequences for the 
reputation of the judiciary and the legitimacy of the 
government. 

 

When the Constitution authorized judicial 
power under Article III, it took for granted that 
judges, in line with common law ideals of judicial 
office, had an office or duty to exercise independent 
judgment about what the law is. As Chief Justice 
Marshall famously put it in Marbury v. Madison, “It 
is emphatically the duty of the Judicial Department 
to say what the law is.” 5 U.S. 137, 177 (1803). It 
therefore must be asked how judges can defer to the 
interpretations or judgments of federal bureaucrats 
in administrative agencies. By unduly respecting or 
otherwise deferring to the judgment of such agencies 
under Auer, judges are abandoning their solemn 
duty—indeed, their very office—of independent 
judgment. 

 


To make matters worse, the agency to which a 
court must defer under Auer is frequently a party to 
the case before the court. In such instances, Auer 
essentially requires judges to accept one litigant’s 
argument over another’s, as long as that position is 
not “clearly erroneous.” While Auer precommits 
judges to favor one party over another, the Fifth 
Amendment’s guarantee of due process of law 
requires judges not to be precommitted to any party. 
Auer therefore requires judges to adopt a systematic 
bias in favor of the government, in violation of the 
due process of law. 

 

These constitutional questions about the role 
of the Judiciary in light of Auer should worry all 
Americans, but they should especially concern the 
justices on this Court. No amount of statutory 
authority can put these fundamental questions to 
rest. A mere statute may allow an agency to 
interpret laws and regulations for its own purposes, 
but it cannot excuse the judges from their 
constitutional duty to exercise their own 
independent judgment to “expound and interpret the 
rule.” Marbury, 5 U.S. at 177. Nor can it brush aside 
the constitutional right of litigants to a process that 
is free from systematic bias. 

 

The time has come for this Court to answer 
these vexing questions. Amici join with petitioner in 
asking this Court to grant certiorari. 

 


REASONS FOR GRANTING THE PETITION 

I. REVIEW IS WARRANTED BECAUSE AUER 
REQUIRES JUDGES TO GIVE UP THEIR 
INDEPENDENT JUDGMENT IN VIOLATION OF 
ARTICLE III 

 

In Auer v. Robbins, this Court held that 
judges must give an agency’s interpretation of its 
own rules “controlling” weight as long as the 
interpretation is not “plainly erroneous or 
inconsistent with the regulation.” 519 U.S. at 461. 
Such deference is even broader than that required 
for agency interpretations of statutes in Chevron, 
U.S.A., Inc. v. National Resources Defense Council, 
Inc. 467 U.S. 837, 866 (1984). Under Auer, for 
example, when a regulation interpreting an 
ambiguous statute contains an ambiguity, the 
agency’s interpretation of that regulation (and by 
extension, its interpretation of that statute) is 
entitled to complete deference. This is especially 
problematic given that the range of documents 
eligible for deference under Auer is much broader 
than under Chevron. See Auer, 519 U.S. at 462. 

 

Although administrative rules are not laws 
per se, many are considered binding under the 
Administrative Procedure Act (APA) and enjoy the 
force of law. See 5 U.S.C. § 551(4) (defining a “rule” 
as “an agency statement of general or particular 
applicability and future effect designed to 
implement, interpret, or prescribe law or policy.”). At 
the very least, many administrative rules give effect 
to statutes that bind. And when judges defer to an 
agency’s interpretation of its own rules—those that 
either have the force of law or give effect to statutes 


with the force of law—the judges surely must satisfy 
the same constitutional standard of judgment, and 
duty of office, as in their interpretations of statutory 
and common law. In stark contrast, Auer requires 
judges to abandon their constitutional office of 
independent judgment in favor of the Executive 
Branch’s interpretation. 

 

A. Under Article III, Judges Have an 
Office or Duty to Exercise Their 
Own Independent Judgment in 
Each Case 

 

Article III of the Constitution vests the courts 
with the judicial power and protects individual 
judges in their “[o]ffice.” U.S. Const. art. III, § 1. 
Whereas the judicial power of the courts centrally 
includes the power to hear and decide cases and 
controversies, a judge’s office centrally is a duty to 
judge—to exercise independent judgment in 
interpreting the law of the land in each case. As 
Chief Justice Marshall explained in Marbury v. 
Madison, “It is emphatically the duty of the Judicial 
Department to say what the law is. Those who apply 
the rule to particular cases must, of necessity, 
expound and interpret the rule.” 5 U.S. at 177. 

 

 Judicial independence has been a touchstone 
of legitimate governance since the Middle Ages, see 
Philip Hamburger, Law and Judicial Duty 149-50 
(2008), and has been an impediment to deference to 
prerogative or administrative interpretation since 
the early seventeenth century, when English kings 
demanded judicial deference to prerogative 
interpretations of statutes, and some leading judges 
rejected such deference as incompatible with their 


office or duty. Although King James I demanded 
judicial deference to prerogative interpretations of 
statutes on the theory that “[t]he King being the 
author of the Lawe is the interpreter of the Lawe,” 
Hamburger, Law and Judicial Duty 223, the judges 
responded that, although all judicial power was 
exercised in the name of the monarch, judicial power 
rested in the judges. Prohibition del Roy, 12 Co. Rep. 
63, 65 (1608). Unlike prerogative judges, the law 
judges could not defer to royal or prerogative 
interpretations, because they had a duty of 
independent judgment. See Philip Hamburger, Is 
Administrative Law Unlawful? 145 (2014) (“The core 
of judicial office was thus the duty of independent 
judgment. This internal commitment distinguished 
the law judges from prerogative judges and … it still 
distinguishes them from administrative judges.”). 

 

The American colonists carried this principle 
with them across the Atlantic, where even before 
declaring their own independence from tyranny, they 
fought to keep judges independent of the Crown. See 
Hamburger, Law and Judicial Duty, 513-14 
(chronicling the controversy over Chief Justice Peter 
Oliver). And later, in the Declaration of 
Independence, Thomas Jefferson identified the 
desire for a truly independent judiciary as a basis for 
seceding from the British Crown. The Declaration of 
Independence para. 3 (U.S. 1776) (objecting to judges 
who were “dependent on [King George’s] will alone”). 

 

The quest for judicial independence was also 
embodied in the idea of separation of powers. The 
French political philosopher Montesquieu, in his 
famous Spirit of the Laws, provided the classic 
formulation of the separation of powers: 


Again, there is no liberty if the power of 
judging be not separated from the 
legislative and executive powers. Were 
it joined with the legislative, the life 
and liberty of the subject would be 
exposed to arbitrary control; for the 
judge would then be the legislator. 
Were it joined to the executive power, 
the judge might behave with all the 
violence of an oppressor. 

 

Charles de Montesquieu, Spirit of the Laws 151-52 
(O. Piest ed., T. Nugent trans. 1949) (1748). The 
earliest state constitutions guarded against such 
dangers by establishing three separate branches of 
government, and when the Constitutional 
Convention of 1787 convened, the delegates’ first 
substantive vote was to create a new government 
consisting of the three branches. See 1 Records of the 
Federal Convention of 1787 30-31 (Max Farrand ed., 
Yale Univ. Press 1911). On account of the exceptions 
necessary for checks and balances, most state 
constitutions and the U.S. constitution did not 
rigidly guarantee the separation of powers; instead, 
by authorizing the three branches of government, 
they established separation as a “fundamental” 
default principle, subject to “positively enumerated” 
exceptions. See Hamburger, Is Administrative Law 
Unlawful? 331-32 (quoting St. George Tucker). 

 

The duty of independent judgment was 
grounded not simply in the separation of powers but 
also in Article III. Judges in the common law 
tradition were understood to have an office of 
independent judgment, and the Constitution 
imposed this duty when it established courts with 


judges. See U.S. Const. art. III, § 1 (“The Judges”). 
The Constitution also conveyed this duty when it 
placed the judicial power in the courts. See ibid 
(“The judicial Power of the United States”). When 
James Iredell in 1786 explained the duty of the 
judges under the “judicial power” of the North 
Carolina Constitution, he spoke of “[t]he duty of the 
power.” James Iredell, To the Public, N.C. Gazette 
(Newbern) (Aug. 17, 1786). Similarly, the duty came 
with the judicial power of the United States. 

 

Because of their duty of independent 
judgment, the judges had to reach their own 
judgments about interpretation. To protect the 
judges’ independent judgment from external threats, 
the Constitution guaranteed them life tenure and 
undiminished salaries. See U.S. Const. art. III, § 1. 
Their independence, however, consisted of more than 
just these outward, institutional protections. Judges 
more basically had an internal duty to exercise their 
own independent judgment about the law of the 
land, and they therefore were not to be predisposed 
to any party in reaching judgments about what the 
law is—that is, in interpreting the law. As put by 
Nathaniel Gorham in the 1787 Constitutional 
Convention, “the Judges ought to carry into the 
exposition of the laws no prepossessions with regard 
to them.” 2 Records of the Federal Convention of 
1787 79; cf. Hamburger, Law and Judicial Duty 507-
12 (discussing internal duty of independent 
judgment). 

 

 This duty was what gave judicial 
interpretation its distinctive legal authority. As the 
Federalist Papers explained, “[t]he interpretation of 
laws is the proper and peculiar province of the 


courts.” The Federalist No. 78 (Alexander Hamilton). 
This was not to say that other Americans, including 
those in the Executive Branch, did not have to 
interpret for their own purposes, but rather that 
because judges interpreted in pursuit of their 
constitutional office of independent judgment, 
interpretation was peculiarly their office and thus 
had the authority of their office. Cf. Hamburger, 
Law and Judicial Duty 543-48 (discussing authority 
of judicial interpretation). 

 

The duty of independent judgment was 
profoundly personal, and some of the nation’s finest 
early jurists felt obliged to exercise their judgment 
independently not merely of the Executive, but also 
of their fellow justices. See, e.g., Georgia v. 
Brailsford, 2 U.S. 415, 416 (1793) (Iredell, J., 
dissenting) (“It is my misfortune to dissent … but I 
am bound to decide, according to the dictates of my 
own judgment.”); The Julia, 14 F. Cas. 27, 33 (C.C.D. 
Mass. 1813) (Story, J.) (“[M]y duty requires that 
whatsoever may be its imperfections, my own 
judgment should be pronounced to the parties.”); 
United States v. Burr, 25 F. Cas. 2, 15 (C.C.D. Va. 
1807) (Marshall, C.J.) (“[W]hether [the point] be 
conceded by others or not, it is the dictate of my own 
judgment, and in the performance of my duty I can 
know no other guide.”); cf. Stephen Breyer, Judicial 
Review of Questions of Law and Policy, 38 Admin. L. 
Rev. 363, 368 (1986) (“After all, judges are charged 
by statute and Constitution with deciding legal 
questions.”). 

 


B. Auer Requires Judges to Violate 
Article III by Abandoning Their 
Independent Judgment 

 

A judge’s office under Article III requires an 
exercise of judgment independent of the Executive’s 
will, and the office thus leaves no room for deference, 
let alone obligatory deference, to an administrative 
body’s interpretation of its own ambiguous rules. 
Nonetheless, Auer requires judges to abandon their 
duty of office by forgoing their own independent 
judgments in favor of those of the agency. 

 

This misguided deference erodes the 
structural safeguards that the Framers erected as a 
bulwark against tyranny. See John F. Manning, 
Constitutional Structure and Judicial Deference to 
Agency Interpretations of Agency Rules, 96 Colum. L. 
Rev. 612, 618 (1996) (“Seminole Rock leaves an 
agency free both to write a law and then to ‘say what 
the law is’ through its authoritative interpretations 
of its own regulations.”). Even more fundamentally, 
however, Auer deference requires the judges to give 
up their very office as judges. 

 

Most inquiries into the constitutional limits 
on the Judiciary’s reflexive deference to an agency’s 
interpretations have tended to focus on the interplay 
between the legislative and executive branches (i.e., 
questions of delegation, representative government, 
etc.). See, e.g., Kathryn A. Watts, Rulemaking as 
Legislating, 130 Geo. L.J. 1003 (2015); Douglas W. 
Kmiec, Judicial Deference to Executive Agencies and 
the Decline of the Nondelegation Doctrine, 2 Admin. 
L.J. 269 (1988). And while there is good reason to 
view agency rulemaking and interpretation as a 


form of unconstitutionally delegated lawmaking, this 
narrow line of inquiry fails to appreciate the judges’ 
unique office or duty. 

 

In other words, the judicial deference problem 
is separate and distinct from the agency 
interpretation problem. Even where agencies have 
statutory authorization to interpret laws and 
regulations for their own purposes, constitutional 
questions remain about the role of judges, because 
the Constitution gives them a duty of independent 
judgment in exercising their judicial office. By 
focusing on statutory questions of congressional 
authorization, as if no larger principle were at stake, 
federal judges fail to confront the steady erosion of 
their very office under Article III. Yet congressional 
authorization of agency interpretations can never 
relieve federal judges of their constitutional duty, in 
each case, to exercise their own independent 
judgment about the legal questions before them. 

 

1. Congress may not alter the 
core duty of Article III judges 

 

Even if Congress may grant agencies the 
power to both promulgate and interpret their own 
regulatory rules (by which the agencies bind the 
American people or give effect to binding statutes), 
this subdelegation of legislative power to agencies 
does not obviate a judge’s duty under Article III to 
make an independent judgment of what the law is in 
any given case or controversy. See Speech of Pa. Rep. 
Lewis on Impeachment of the Pa. Judges, in 
Respublica v. Oswald, 1 U.S. 319, 337 n.* (1788) 
(“[T]he legislative power is confined to making the 
law, and cannot interfere in the interpretation; which 


is the natural and exclusive province of the judicial 
branch of the government.”) (emphasis added). 

 

Federal judges enjoy their office under the 
Constitution, and Congress therefore cannot excuse 
them from their duty of independent judgment. Nor 
can any statutory grant of judicial-like power to 
executive agencies displace the constitutional duty of 
Article III judges to exercise their own independent 
judgment in cases properly within their jurisdiction. 
See ibid (“[T]he courts of justice derive their powers 
from the constitution, a force paramount to the 
legislature; and, consequently, what is given to them 
by the former, cannot be taken from them by the 
latter.”). 

 

While Congress may enumerate which types 
of cases and controversies the federal courts may 
hear, it cannot bar judges from adjudicating 
particular issues or considering particular 
arguments in cases properly before them. “It is one 
thing for Congress to withhold jurisdiction. It is 
entirely another to confer it and direct that it be 
exercised in a manner inconsistent with 
constitutional requirements or, what in some 
instances may be the same thing, without regard to 
them.” Yakus v. United States, 312 U.S. 414, 468 
(1944) (Rutledge, J., dissenting); see also Martin v. 
Hunter’s Lessee, 14 U.S. 304, 329 (1816) (“If then, it 
is the duty of congress to vest the judicial power of 
the United States, it is a duty to vest the whole 
judicial power.”) (emphasis added). 

 

The question about whether Congress has 
authorized agencies to interpret the law is therefore 
irrelevant to the role of federal judges. The judges’ 


duty of independent judgment rests on constitutional 
foundations, and it therefore cannot be dislodged by 
mere congressional enactments. 

 

2. Article III judges may not 
abdicate their core duty 

 

Just as the Constitution bars Congress from 
interfering with the judges’ office of independent 
judgment, so too it bars the judges from abdicating 
their independent judgment. Auer thus cannot 
compel Article III judges to surrender this core duty 
of their constitutional office. 

 

In the context of constitutional questions, this 
Court already has recognized that deference to the 
Executive Branch’s legal interpretations constitutes 
an “inappropriate” abdication of the judicial role. See 
Miller v. Johnson, 515 U.S. 900, 922-23 (1995) 
(holding that deference to the Department of 
Justice’s opinion “surrender[s] to the Executive 
Branch” the role of the courts); see also United States 
v. Nixon, 418 U.S. 683, 704 (1974) (holding that 
judicial power cannot be shared with the Executive 
Branch). 

 

Article III therefore cannot abide a judicially 
created dogma that requires judges to rely on the 
judgment of administrators in place of the judges’ 
own independent judgment about what the law is. 
This independent judgment is the central 
constitutional duty of the judges, and by compelling 
federal judges to give up this function in some cases, 
Auer requires federal judges to abandon their very 
office as judges. Cf. Yarborough v. Alvarado, 541 
U.S. 652, 663-64 (2004) (discussing the “substantial 


element of judgment” that federal judges must 
exercise “when applying a broadly written rule to a 
specific case”). Even if Congress may task an agency 
with making rules that bind or give effect to binding 
statutes, once the meaning and application of those 
rules in a particular case or controversy is called into 
question, it is unquestionably the role of the 
Judiciary to “say what the law is.” Marbury, 5 U.S. 
at 177. The duty of independent judgment is the very 
office of an Article III judge; Auer cannot require 
judges to abdicate this duty. 

 

II. REVIEW IS WARRANTED BECAUSE, WHEN THE 
GOVERNMENT IS A PARTY, AUER REQUIRES 
JUDGES TO EXHIBIT SYSTEMATIC BIAS, IN 
VIOLATION OF THE FIFTH AMENDMENT’S DUE 
PROCESS CLAUSE 

 

One of the advantages of having judges who 
exercise their own independent judgment is 
protection against bias. In sharp contrast, one of the 
costs of Auer deference is that, where the 
government is a party, Auer systematizes a 
precommitment in favor of the government—a bias 
that violates the Fifth Amendment’s guarantee of 
due process. Although the government is not a party 
to this case, any delay in overturning Auer will have 
important consequences in those cases to which the 
government is a party. For that reason, certiorari is 
independently warranted to correct the systematic 
bias that Auer not only makes possible, but 
affirmatively requires. 

 


A. The Fifth Amendment’s Due 
Process Clause Bars Judges from 
Deciding Cases with a Pre-
disposition in Favor of a Party or 
Class of Parties 

 

The Fifth Amendment dictates that no person 
“shall be deprived of life, liberty, or property, 
without due process of law.” U.S. Const. amend V. 
The Due Process Clause “entitles a person to an 
impartial and disinterested tribunal in both civil and 
criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 
238, 242 (1980); In re Murchison, 349 U.S. 133, 136 
(1955) (“A fair trial in a fair tribunal is a basic 
requirement of due process.”). At a bare minimum, 
due process requires not only impartiality in fact, 
but also the appearance of impartiality on the part of 
judges. Such impartiality and the absence of bias are 
“the sine qua non of the American legal system.” 
Haines v. Liggett Group, 975 F.2d 81, 98 (3d Cir. 
1992); see also Commonwealth Coatings Corp. v. 
Cont’l Cas. Co., 393 U.S. 145, 149 (1968) (“Any 
tribunal permitted by law to try cases and 
controversies not only must be unbiased but also 
must avoid even the appearance of bias.”). 

 

Far beyond mere procedural “fairness,” the 
“due process of law” historically has been understood 
as a requirement that government must act “through 
judges whose office required them to exercise 
independent judgment in accord with the law.” 
Hamburger, Is Administrative Law Unlawful? 173. 
Due process thus incorporates the common law 
maxim that “[n]o man is allowed to be a judge in his 
own cause, because his interest would certainly bias 


his judgment, and, not improbably, corrupt his 
integrity.” The Federalist No. 10 (James Madison). 

 

This guarantee of neutrality in all judicial 
proceedings “safeguards the two central concerns of 
procedural due process, the prevention of unjustified 
or mistaken deprivations and the promotion of 
participation and dialogue by affected individuals in 
the decisionmaking process.” Jerrico, 446 U.S. at 
242. By “ensuring that no person will be deprived of 
his interests in the absence of a proceeding in which 
he may present his case with assurance that the 
arbiter is not predisposed to find against him,” the 
Due Process Clause’s neutrality requirement “helps 
to guarantee that life, liberty, or property will not be 
taken on the basis of an erroneous or distorted 
conception of the facts or the law.” Ibid. 

 

 Of course, judicial bias need not take the form 
of subjective personal prejudice to violate the due 
process of law; it also can be institutional. In other 
words, far from being confined to the idiosyncratic 
prejudices of individual judges, bias can also take 
the form of institutional unfairness arising from an 
unfair but precedential rule about judging. 

 

It therefore is significant that all relevant 
circumstances “must be considered” when deciding 
whether judicial bias (or the appearance of it) 
amounts to a denial of due process. Murchison, 349 
U.S. at 136; see also Caperton v. A.T. Massey Coal 
Co., 556 U.S. 868, 872 (2009) (finding that due 
process required recusal based on “all the 
circumstances of this case”); Aetna Life Ins. Co. v. 
Lavoie, 475 U.S. 813, 821–25 (1986) (accounting for 
various factors bearing on the risk of bias). One such 


circumstance is whether the bias is personal or 
institutional. Personal judicial bias is bad enough, 
for it leaves parties subject to the caprice of an 
individual judge. Institutionalized judicial bias, 
however, is far worse, because it systematically 
subjects parties to bias under all judges. Where bias 
is institutionally imposed, it is especially pervasive 
and persistent. 

 

B. When the Government is a Party, 
Auer Violates Due Process by 
Requiring Judges to Exhibit 
Systematic Bias in Favor of the 
Government 

 

The institutional character of the bias 
imposed by Auer makes such deference all the more 
remarkable and worrisome. At bottom, it is an 
institutionally imposed thumb on the scales of 
justice—a systematic predisposition in favor of the 
government, even where the government itself is a 
party to the suit. In such a case, Auer deference 
requires judges to be systematically biased in favor 
of one of the parties, in violation of the due process of 
law.2 

2 Of course, nothing precludes judges from considering 
an executive agency’s interpretation of a rule or regulation. 
Particularly when the agency is a party to the litigation, the 
judges must consider the government’s legal arguments. But 
where the judges show greater respect for the interpretation 
propounded by one party than for the interpretation put 
forward by the other party, the judges are engaging in bias, in 
violation of the due process of law. 

 


It ordinarily would be outrageous for a judge 
deciding a case to defer to the litigating position of 
one of the parties. And it would be inconceivable for 
that judge to do so by announcing, ahead of time, a 
rule under which he must reflexively accept the legal 
position of a party regularly appearing before his 
court—let alone the most powerful of parties, the 
government. It is therefore necessary to confront the 
reality that where the government is a party to the 
suit and the judge defers to an agency interpretation 
under Auer, they exhibit a precommitment to one of 
the parties.3 

3 All cases in which the government is a party raise this 
question about systematic bias. But even where, as here, all the 
parties are private, questions can arise about systematic bias. 
For example, there are many cases in which the government is 
not joined as a party, but private parties enforce regulatory 
rules against other private parties in proceedings (for fines or 
damages) that serve as enforcement mechanisms. In such 
instances, although the government is not a party, it may fairly 
be considered a party in interest—especially when the relevant 
government agency goes to the trouble of filing an amicus brief 
in support of one party on the very question at issue. See, e.g., 
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 
(2012). 

 

 

Auer deference is particularly egregious when 
administrative interpretations form the basis of 
agency proceedings for punitive fines or other 
penalties, which are essentially criminal in nature, 
and which, in many cases, substitute for criminal 
prosecutions. Even in those administrative cases 
where Congress “has indicated an intention to 
establish a civil penalty,” this Court has inquired 
further “whether the statutory scheme was so 


punitive either in purpose or effect” as to transform 
“what was clearly intended as a civil remedy into a 
criminal penalty.” Hudson v. United States, 522 U.S. 
93, 99 (1997) (citations and internal quotations 
omitted). When judges hearing appeals from such 
proceedings defer to administrative interpretations, 
they not only reveal a systematic bias in favor of the 
government, but they also turn on its head the rule 
of lenity and the underlying presumption that a 
criminal defendant is innocent until the government 
has proven him guilty. 

 

Of course, executive agencies probably think 
that Auer deference has much administrative value. 
And although it is doubtful whether it has equal 
value for all agencies, it may be significantly useful 
for some. But where agencies create vague or 
ambiguous regulations, they can promulgate 
additional clarifying regulations, and so it is far from 
obvious why they need judicial deference to their 
interpretation of their own regulations—except to 
escape notice and comment. Whereas Chevron 
deference applies to regulations written within the 
APA’s notice-and-comment framework, Auer 
deference allows agencies to evade and even 
contravene such procedural safeguards, often in 
violation of the litigants’ due process rights to “fair 
notice of conduct that is forbidden or required.” FCC 
v. Fox TV Stations, Inc., 132 S. Ct. 2307, 2317 
(2012). Any value of Auer deference must therefore 
be considered in context. Whatever the utility of 
such deference, it is overshadowed by Auer’s evasion 
of notice and comment and, even more profoundly, 
by its consequences for the role of the judges. 

 


Auer deference not only requires judges to 
abandon their constitutional office and duty of 
independent judgment but also requires them to 
favor the legal position of one party in a case over 
that of the other party. It therefore is difficult to 
avoid the conclusion that Auer requires judges to 
engage in systematic bias, in violation of the Fifth 
Amendment’s due process of law. The Fifth 
Amendment requires a judge to engage in impartial 
judgment, without bias toward either party. 
Nonetheless, where the government is a litigant, 
Auer requires judges to favor that party. Auer 
deference therefore is unconstitutional. 

 

III. AUER BRINGS THE JUDICIARY INTO 
DISREPUTE, THEREBY UNDERMINING PUBLIC 
CONFIDENCE IN THE COURTS 

 

Deference to administrative interpretation 
has led federal judges further astray than many of 
them realize. They have abandoned their office of 
independent judgment in accord with the law of the 
land, and they have engaged in systematically 
biased judgment in violation of the due process of 
law. All of this is worrisome because the 
independent judgment of unbiased judges is 
essential for political legitimacy. In all cases—but 
especially in those adjudicating the power of 
government over the people—it is crucial that 
Americans have confidence that judges are not 
predisposed against them. 

 

Experimenting with notions of judicial 
deference is a dangerous game. The availability of 
judges who exercise their own independent and 
unbiased judgment, without deference, is the 


foundation of Anglo-American government, in which 
conflicts are resolved by law rather than force, and 
in which conflicts about what the law requires are 
decided by judges. Without what John Locke called 
“a known and indifferent judge,” John Locke, Two 
Treatises of Government 351 (Peter Laslett ed., 
Cambridge Univ. Press 1988) (1690), the people will 
be tempted to become their own judges and take 
judgment into their own hands. 

 

Although deference to administrative 
interpretation is only one aspect of the Judiciary’s 
intersection with administrative power, it illustrates 
a broader problem with such involvement—that it 
compromises the Judiciary. Rather than worry about 
maintaining administrative power, judges should 
worry about preserving their own role. They should 
seriously ponder the unlawfulness of their deference 
and its consequences for them and the entire 
government. Under the Constitution, judges must 
exercise independent judgment, and they must avoid 
systematic bias, lest they violate due process. If they 
fail to meet these most basic requirements, they will 
squander any public respect for their office. 

 

Judicial deference under Auer favors executive 
interpretation even though the judges would never 
treat congressional interpretation in this way. 
Accordingly, when judges defer to agency judgments 
about interpretation, they make a mockery of their 
esteemed office; they reduce it from a posture of 
independent judgment to a posture of bowing to 
power. 

 

It is no answer to suggest that judicial 
deference does not conflict with judicial duty because 


judges assume different roles in administrative cases 
than in constitutional cases. This argument is akin 
to saying that when the government acts through 
administrative power, rather than through the 
structures of power established by the Constitution, 
it should be subject to constitutional law “lite.” This 
excuse is just another attempt to avoid confronting 
the conflict between judicial deference and judicial 
duty—as if the government could avoid the full 
weight of constitutional law by acting 
administratively. Rather than a solution, this is just 
another type of systematic bias. 

 

The first Canon of judicial conduct declares: 
“An independent and honorable judiciary is 
indispensable to justice in our society.” Judicial 
Conference of the United States, Code of Conduct for 
United States Judges, Canon 1 (2009). The 
commentary observes that “[d]eference to the 
judgments and rulings of courts depends on public 
confidence in the integrity and independence of 
judges.” Id., Canon 1, Commentary. On this 
reasoning, if the judges want public deference, they 
must avoid Auer deference. In the meantime, the 
latter “diminishes public confidence in the judiciary 
and injures our system of government under law.” 
Ibid. The third Canon states that a judge “shall 
disqualify himself or herself in a proceeding in which 
the judge’s impartiality might reasonably be 
questioned, including but not limited to instances in 
which: (a) the judge has a personal bias or prejudice 
concerning a party.” Id., Canon 3(C)(1). What is true 
of personal bias is also true of institutional bias. The 
judges cannot systematically defer to the 
interpretation or legal position of one of the parties 


before them without undermining their reputation 
for justice. 

 

Every day that Auer remains law, it leaves 
Americans with the impression that they cannot 
obtain impartial adjudications on administrative 
rules. Every day, therefore, Auer erodes the 
Judiciary’s legitimacy. And this Court is well aware 
that these concerns are percolating through much of 
the bar and more broadly among Americans. See 
Decker v. Nw. Env. Def. Ctr., 133 S. Ct. 1326, 1339 
(2013) (Roberts, C.J., concurring) (“Questions of 
Seminole Rock and Auer deference arise as a matter 
of course on a regular basis. The bar is now aware 
that there is some interest in reconsidering those 
cases ….”). 

 

This case presents a valuable opportunity for 
the Court finally to reconsider Auer deference. See 
Perez, 135 S. Ct. at 1210-11 (Alito, J., concurring in 
part and concurring in judgment) (“I await a case in 
which the validity of Seminole Rock may be explored 
through full briefing and argument.”); id. at 1225 
(Thomas, J., concurring in judgment) (“[T]he entire 
line of precedent beginning with Seminole Rock 
raises serious constitutional questions and should be 
reconsidered.”). By allowing Auer to stand, the Court 
would be leaving in place a profound and ongoing 
injustice that damages its reputation. To preserve 
the Judiciary’s legitimacy, the Court should seize 
this opportunity to grant review and reject Auer and 
Seminole Rock once and for all. 

 


CONCLUSION 

 

 For the foregoing reasons, amici curiae 
Professor Philip Hamburger and Washington Legal 
Foundation respectfully request that the Court grant 
the petition. 

 

 Respectfully submitted, 

 

 

 

 

 

 

 

 

 

 

February 5, 2016 

 

CORY L. ANDREWS 

 Counsel of Record 

MARK S. CHENOWETH 

JARED MCCLAIN 

WASHINGTON LEGAL 

 FOUNDATION 

2009 Massachusetts Ave., NW 

Washington, DC 20036 

(202) 588-0302 

candrews@wlf.org