ADMINISTRATIVE LAW -- AUER DEFERENCE -- SEVENTH CIRCUIT DEFERS TO DEPARTMENT OF EDUCATION AMICUS BRIEF INTERPRETING STUDENT LOAN REGULATIONS. -- Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir.), reh'g denied, 807 F.3d 839 (7th Cir. 2015), cert. denied, 2016 WL 2842875 (U.S. May 16, 2016).

James Madison wrote that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny." 1 In his final years on the bench, Justice Scalia invoked that specter to condemn the rule of judicial deference he once championed in Auer v. Robbins . 2 When litigants dispute the meaning of a rule promulgated by an administrative agency, Auer tells judges to give that agency's interpretation "controlling weight unless it is plainly erroneous or inconsistent with the regulation." 3 Auer 's defenders extol its provision of flexibility to expert administrators and dismiss as "wildly disproportionate" the accusation that the doctrine menaces the separation of powers. 4 But the Supreme Court has withheld Auer deference "when there is reason to suspect that the agency's interpretation 'does not reflect the agency's fair and considered judgment'" 5 and four Justices have lately advertised their willingness to consider scrapping the doctrine altogether. 6 Recently, in Bible v. United Student Aid Funds, Inc. , 7 the Seventh Circuit applied Auer to reverse a district court ruling in conflict with the Department of Education's (ED) interpretation of its own student loan regulations, as expressed in an amicus brief. 8 Concurring in the subsequent denial of rehearing, Judge Easterbrook reckoned the case not worth reviewing "when Auer may not be long for this world." 9 But the faults exposed in Bible -- where a fractured panel produced three distinct approaches to the key ...