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

Seminole Rock and Unintended Consequences

by Aaron Nielson — Tuesday, Sept. 20, 2016@Aaron_L_Nielson

It’s no secret that some people have misgivings about the administrative state—including, most notably, the Chief Justice of the United States. In fact, Chief Justice Roberts believes that the administrative state—with its “‘vast and varied federal bureaucracy’”—presents a “danger” that “cannot be dismissed.” Although “it would be a bit much” to condemn today’s regulatory scheme […]

Auer and the Incentives Issue, by Ronald M. Levin

by Guest Blogger — Monday, Sept. 19, 2016

At the center of the challenge to Auer deference is the thesis that the deference prescribed in that case gives agencies an incentive to write regulations vaguely, so that they will subsequently be able to adopt interpretations of those regulations that have not undergone the rigors of the notice and comment process but will nevertheless […]

Why Seminole Rock Should Be Overruled, by Allyson N. Ho

by Guest Blogger — Monday, Sept. 19, 2016

Seminole Rock (or Auer) deference requires courts to defer to an agency’s interpretation of its own regulation “unless that interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1337 (2013). Courts will defer even when the agency’s interpretation is not “the only possible reading of […]

Auer, Now and Forever, by Cass R. Sunstein & Adrian Vermeule

by Guest Blogger — Monday, Sept. 19, 2016

(This post is adapted from The Unbearable Rightness of Auer, U. Chi. L Rev. forthcoming)   For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court – although we will see […]

Auer in the Circuit Courts, by David Feder

by Guest Blogger — Friday, Sept. 16, 2016

Auer matters. It makes the difference between winning and losing on important issues that matter to real people—such as what bathroom a transgender student may use, what costs foreign employees must be reimbursed for, and the proper sentence for a convicted criminal. Consider these recent examples:   1. G. ex rel. Grimm v. Gloucester County School […]

Auer Federalism: Preemption and Agency Deference, by Catherine Sharkey

by Guest Blogger — Friday, Sept. 16, 2016

An August 13, 2016 New York Times article reports that “Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.” Putting to one side the detail that agencies authorized by Congress—not the President—promulgate regulations, the article looks behind the widespread public perception that “President Obama […]

Auer, Mead, and Sentencing

by Andrew Hessick — Thursday, Sept. 15, 2016@andyhessick

Hear Auer deference, and you’re unlikely to think of criminal law.  After all, Auer deference is a doctrine of administrative law, and administrative law has traditionally been viewed as separate from criminal law.  And it’s true, Auer deference does not often come up in determining whether a substantive criminal violation has occurred. But Auer deference […]

Seminole Rock in Environmental Law: A Window Into Weirdness, by Daniel Mensher

by Guest Blogger — Thursday, Sept. 15, 2016

Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies […]

Seminole Rock in Tax Cases, by Steve R. Johnson

by Guest Blogger — Thursday, Sept. 15, 2016

This article is not about the wisdom or lack thereof of Auer/Seminole Rock (“ASR”). Instead, it explores an aspect of ASR “on the ground.” Specifically, this article considers the considerable gaps between how the Supreme Court has framed the doctrine and how the United States Tax Court has applied (or not applied) it.   Some […]