The Constitution requires federal judges to exercise independent judgment and refrain from bias when interpreting the law. These are foundational constitutional requirements for an independent judiciary. Article III gives federal judges life tenure and salary protection to ensure that judicial pronouncements will reflect the judges’ independent judgment rather than the desires of the political branches. And the Due Process Clause prohibits judges from displaying any type of bias toward litigants when resolving disputes. These aspects of judicial duty are so axiomatic that they are seldom if ever mentioned or relied upon in legal argument—because to even suggest that a court might depart from its duty of independent judgment or harbor bias toward a litigant would be a scandalous insinuation.

Yet the judiciary has been flouting these foundational constitutional commands by “deferring” to an agency’s interpretation of its own rules. See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). And while the “Auer deference” doctrine has been roundly criticized, the bulk of criticism has focused on Auer’s incompatibility with the APA and the bad incentives that Auer creates for agency behavior. As a result, the glaring constitutional problems with this court-created deference regime have all too often been overlooked or else relegated to the periphery. Because NCLA’s two main constitutional objections to Auer—independent judgment and judicial bias— have not been previously litigated before this Court, stare decisis does not bind the Court here. Indeed, because each member of this Court is bound by oath to support and defend the Constitution of the United States, see 5 U.S.C. § 3331, he or she has a duty to address and expound Auer’s constitutional defects. If this Court were considering the constitutionality of a statute, this Court would have reason to avoid pronouncing the statute unconstitutional if a non-constitutional disposition of the case were available. But where this Court is considering the constitutionality of its own doctrine—a doctrine that commands justices of this Court and judges of lower courts to abandon their independent judgment and exhibit bias in violation of the due process of law— the Court has a duty to act promptly in confessing error and correcting its own unlawful doctrine. The reputation and enduring institutional legitimacy of this Court depend on its courage in facing up to difficult problems, including its own unconstitutional doctrines. There is no appeal from the erroneous judgments of the Supreme Court except to this Court at a later time, and there is no relief from the Court’s own unconstitutional doctrines other than in this Court. Accordingly, any decision that “avoids” recognizing the patent constitutional defects with Auer and other agency-deference doctrines would leave Americans without an adequate judicial remedy.

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