Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations

by Aaron Nielson — Monday, Sept. 12, 2016@Aaron_L_Nielson

Seminole Rock (or Auer) deference prompts many disagreements. Everyone agrees, however, that Seminole Rock has captured the attention of scholars, policymakers, and the judiciary. That is why we at Notice & Comment have decided that the time has come to collect thoughts regarding different aspects of Seminole Rock. Indeed, over the next two weeks, we will run short essays from over twenty scholars.

It is my privilege to introduce the subject.

First, what is Seminole Rock deference? According to the Supreme Court, “Auer deference is Chevron deference applied to regulations rather than statutes.” In other words, because of Seminole Rock, courts—generally—defer to an agency’s interpretation of its own ambiguous regulations.

Second, why should we care about it? Well, for one thing, because courts regularly cite Seminole Rock. For another, because it is controversial. In fact, Justice Thomas and the late Justice Scalia have called for Seminole Rock to be overruled, and at least Chief Justice Roberts and Justice Alito may be open to the argument.

Third, why is it controversial? Again, let me quote the Supreme Court: “Deferring to an agency’s interpretation of its own ambiguous regulations undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby frustrating the notice and predictability purposes of rulemaking.” And this concern has some historical pedigree. In the words of John Manning:

Locke, Montesquieu, and Blackstone all emphasized that some separation of lawmaking from law-exposition promoted the rule of law and controlled arbitrary government in two important ways. First, such separation made it more difficult for lawmakers to write bad laws and then spare themselves from the effects of those laws through their control over the laws’ application. … Second, separation of lawmaking from law-exposition also limits arbitrary government by providing legislators an incentive to enact rules that impose clear and definite limits upon governmental authority, rather than adopting vague and discretionary grants of power.

At the same time, however, doesn’t the agency that wrote a regulation know best what it means? And in any event, don’t all the justifications for Chevron deference—including political accountability—apply with full force to Seminole Rock?

Fourth, why care about it now in particular? Because it is timely! Just months ago, the Supreme Court—operating with eight justices—denied a certiorari petition calling for Seminole Rock be overruled. Some speculate, however, that the Court may be more open to the issue once it again has a full bench. Indeed, a new petition raising the issue was filed just weeks ago in Gloucester County School Board v. GG.

Finally, fifth, why have a symposium about it? Because Seminole Rock raises fascinating questions. In fact, scholars have addressed Seminole Rock in a wide variety of ways. In just the last few years, scholars have produced new historical investigations of Seminole Rock’s origins and development, empirical examinations of how courts and agencies understand this deference, and novel investigations of how it is applied in specific areas of law. At the same time, some have called for it to be overruled outright, while defenders have emerged to protect it. The Supreme Court is obviously paying attention, and Congress too has expressed interest.

In short, there never has been a better time to study Seminole Rock. By the end of this symposium, we at Notice & Comment hope that this will be the most complete collection of thoughts on Seminole Rock ever assembled.

Here is the schedule. Each day will feature two to three new posts on these topics:

September 12: History of Seminole Rock

September 13: Empirical Examination of Seminole Rock

September 14: Seminole Rock Within Agencies

September 15: Seminole Rock as Applied

September 16: Why Seminole Rock Matters

September 19: Should the Supreme Court Overrule Seminole Rock?

September 20: Would Overruling Seminole Rock Have Unintended Consequences?

September 21: What Might the Supreme Court Do?

September 22: What Might Congress Do?

September 23: The Future of Seminole Rock?

So brace yourself: Now is the time to really understand Seminole Rock.

This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.

This entry was categorized in Reflections on Seminole Rock and the Future of Judicial Deference to Agency Regulatory Interpretations, Symposia and tagged .

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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