Tag Archives: Seminole Rock/Auer deference

Procedural Politicking and Auer Deference

by Christopher J. Walker — Thursday, Aug. 8, 2019@chris_j_walker

Rachel Potter’s new book Bending the Rules: Procedural Politicking in the Bureaucracy is an absolute must-read for those interested in agency rulemaking and in administrative law and regulatory practice more generally. As the title suggests, the book explores empirically and theoretically how agency officials — both career civil servants and political appointees — leverage procedural […]

Delegation, Deference, and the FCC, by Randolph May

by Guest Blogger — Wednesday, July 10, 2019

During the last week of its just-ended term, the Supreme Court handed down two eagerly anticipated decisions with significant implications for administrative law and, indeed, more broadly, for separation of powers constitutional jurisprudence. The two decisions are Gundy v. United States and Kisor v. Wilkie. While there will be thousands of pages in law reviews, […]

Auer is Dead; Long Live Auer, by Evan Bernick

by Guest Blogger — Friday, June 28, 2019

Four years ago, Michael Herz published a fascinating article in which he argued that separation-of-powers devotees should stop worrying about Chevron deference. However it might once have been understood, Herz argued that Chevron deference descriptively was and normatively ought to be understood in 2015 as a two-step process that allowed both the judicial and the […]

What Kisor Means for the Future of Auer Deference: The New Five-Step Kisor Deference Doctrine

by Christopher J. Walker — Wednesday, June 26, 2019@chris_j_walker

Today the Supreme Court issued its long-awaited (at least for adlaw geeks) decision in Kisor v. Wilkie. The question presented in Kisor was whether to eliminate Auer deference (a.k.a. Seminole Rock deference) — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” […]

Kozel on Stare Decisis and Overturning Chevron and Auer Deference

by Christopher J. Walker — Saturday, Jan. 26, 2019@chris_j_walker

This week the Supreme Court set oral argument in Kisor v. Wilkie for March 27th. Kisor presents the question whether the Court should overturn Auer deference — the doctrine that commands courts to defer to an agency’s interpretation of its own regulation so long as it is not plainly inconsistent. Last year I published a short […]

Walters on Testing Auer Skeptics’ Self-Delegation Hypothesis (AdLaw Bridge Series)

by Christopher J. Walker — Tuesday, Dec. 11, 2018@chris_j_walker

As I noted back in July, the Supreme Court appeared to have a decent vehicle to consider whether to overrule Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” Yesterday the Court granted that […]

Empirical Insight into the Use of Seminole Rock Doctrine (Part II), by William Yeatman

by Guest Blogger — Friday, Sept. 28, 2018

In my last post, I presented the results of an empirical investigation into Seminole Rock deference as a judicial methodology. Below, I lend perspective to these results. Deference to Agency Interpretations of Non-Regulatory Texts Is an Understudied Area of Administrative Law Perhaps the most noteworthy finding of this analysis is that the Seminole Rock framework […]

New Supreme Court Cert Petition to Overrule Auer Deference: Kisor v. O’Rourke

by Christopher J. Walker — Monday, July 9, 2018@chris_j_walker

Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail […]

Will the Supreme Court Revisit Deference Doctrines This Term?

by Jennifer Mascott — Friday, Oct. 6, 2017@jennmascott

Yesterday in his Supreme Court Relist Watch, John Elwood highlighted the Supreme Court’s unusual action this past summer on a cert petition regarding Chevron deference. Mr. Elwood observed that the Supreme Court relisted—again— Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply . . […]

Does Auer/Chevron Deference Apply to State Agency Interpretations of Federal Law?

by Christopher J. Walker — Thursday, Sept. 21, 2017@chris_j_walker

In Grand Canyon Trust v. Energy Fuels Resources (U.S.A.) Inc., Judge Waddoups of the U.S. District Court for the District of Utah concluded that a state agency is entitled to “some deference” as to an interpretation by the Utah Department of Air Quality (DAQ) of the Clean Air Act and its implementing regulations. Here’s the key part […]