Category Archives: Reflections on Seminole Rock and the Future of Judicial Deference to Agency Regulatory Interpretations

Conclusion: Reflections on Seminole Rock

by Aaron Nielson — Friday, Sept. 23, 2016@Aaron_L_Nielson

Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]

After Auer?, by Jeffrey Pojanowski

by Guest Blogger — Friday, Sept. 23, 2016

I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]

Contemplating a Weaker Auer Standard, by Kristin E. Hickman

by Guest Blogger — Friday, Sept. 23, 2016

In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]

Why SOPRA is Not the Answer, by William Funk

by Guest Blogger — Thursday, Sept. 22, 2016

The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily […]

Congress Must Act to Restore Accountability to the Regulatory Process, by Senator Orrin G. Hatch

by Guest Blogger — Thursday, Sept. 22, 2016

“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]

Why the Supreme Court Might Not Overrule Seminole Rock, by Conor Clarke

by Guest Blogger — Wednesday, Sept. 21, 2016

Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led […]

Why the Supreme Court Might Overrule Seminole Rock

by Adam White — Wednesday, Sept. 21, 2016

In 1951, when Kenneth Culp Davis published his first comprehensive study of administrative law under the newly enacted APA, he explained that the deference courts give interpretative rules necessarily depends on a range of factors, from “the relative skills of administrators and judges in handling the particular subject matter” to “the extent of judicial confidence […]

Auer as Administrative Common Law, by Gillian Metzger

by Guest Blogger — Wednesday, Sept. 21, 2016

To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, […]

Rejecting Auer: The Utah Supreme Court Shows the Way, by James Phillips & Daniel Ortner

by Guest Blogger — Tuesday, Sept. 20, 2016

For decades, the Supreme Court of Utah reviewed agency action under either express or implicit “delegations of discretion” for abuse of discretion. This approach “proved difficult to apply” and resulted in widely inconsistent decisions that depended on whether a court found that a statute granted an implicit delegation of power. So in 2013 the Utah […]

Between Seminole Rock and a Hard Place: A New Approach to Agency Deference, by Kevin Leske

by Guest Blogger — Tuesday, Sept. 20, 2016

There is no question that there are both weighty constitutional concerns and practical problems with the Seminole Rock doctrine that impede the achievement of consistency, fairness and transparency in our modern administrative state. These concerns coupled with the confusion and inconsistencies in the lower courts when they attempt to apply Seminole Rock’s “plainly erroneous or […]