Between Seminole Rock and a Hard Place

Over the summer, the Yale Journal on Regulation’s excellent Notice and Comment blog ran a series on Seminole Rock deference. The entire series has now been collected in a PDF that can be downloaded from SSRN.

From Aaron Nielson’s introduction:

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, JusticeThomas and the late JusticeScalia 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.”

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.

Here is the abstract:

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

History of Seminole Rock

Empirical Examinations of Seminole Rock

Understanding Seminole Rock Within Agencies

Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing

Why Seminole Rock Matters

Should the Supreme Court Overrule Seminole Rock?

Would Overruling Seminole Rock Have Unintended Consequences?

What Might the Supreme Court Do?

What Might Congress Do?

The Future of Seminole Rock?

For my last post on this topic, see here.

This content has been updated on November 7, 2016 at 21:07.