(Upcoming Symposium) Reflections on Seminole Rock: The Past, Present, and Future of Deference to Regulatory Interpretations

by Aaron Nielson — Thursday, Sept. 1, 2016@Aaron_L_Nielson

Everyone who has been following administrative law in recent years knows that Seminole Rock deference is controversial. Because of Seminole Rock deference (also known as Auer deference), courts—generally—defer to an agency’s interpretation of its own ambiguous regulations. (Put another way, “Auer deference is Chevron deference applied to regulations rather than statutes.”) This sort of deference is regularly applied in the federal courts. In fact, over just the last three years, federal courts have cited Seminole Rock or Auer nearly 400 times.

Chevron deference, of course, is controversial—especially in some quarters. Seminole Rock deference, however, may be even more controversial. Indeed, Justice Thomas and the late Justice Scalia have called for Seminole Rock to be overruled, and Chief Justice Roberts and Justice Alito have suggested a willingness to consider the question. Also telling, a fairly recent Supreme Court majority opinion declares that “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.”

Recently, the Supreme Court—operating with eight justices—denied a certiorari petition asking that Seminole Rock be overruled. (Notably, 16 States urged the Supreme Court to grant cert.) Some speculate, however, that the Court may be more open to the issue once it again has a full bench. And, indeed, a new cert petition again raising the issue was filed just this week in Gloucester County School Board v. G.G..

In short, whatever you think of it, Seminole Rock merits close examination.

We at Notice & Comment have decided that the time has come for a comprehensive look at Seminole Rock. Accordingly, this month Notice & Comment will host an online symposium collecting thoughts from approximately two dozen leading commentators. If someone has written extensively about Seminole Rock these last few years, there is a pretty good chance that he or she will be participating in the symposium.

 

Our symposium will begin Monday, September 12 and run through Friday, September 23. Each weekday, we will feature two to three new posts on the following 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 mark your calendars—September is Seminole Rock Month at Notice & Comment. Whether you are a lawyer, policymaker, academic, or just someone interested in “admin law,” this symposium should be a lot of fun.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is a professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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