Between Seminole Rock and a Hard Place: A New Approach to Agency Deference

Abstract

In Bowles v. Seminole Rock & Sand Co. the United States Supreme Court held that federal courts must defer to an administrative agency’s interpretation of its own regulation unless the interpretation “is plainly erroneous or inconsistent with the regulation.” Astoundingly, despite its doctrinal significance and practical importance to our administrative state, the Seminole Rock deference doctrine has gone largely unexamined both by the legal community and by the Supreme Court, particularly when compared to the landmark deference doctrines announced in Skidmore v. Swift & Co. and Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.

This Article explores the genesis of this deference regime and analyzes the Supreme Court’s articulation, application, and interpretation of the Seminole Rock doctrine from its inception in 1945 to the present day. The Article then proposes a new approach to the Seminole Rock doctrine. Under this new approach, courts would apply a two-step test to determine whether to defer to an agency’s interpretation of its regulation. By relying upon objective factors, thereby limiting the subjective inquiry, this new approach falls comfortably between Chevron’s controlling deference and Skidmore’s less deferential treatment that courts currently apply when reviewing an agency’s interpretation of a statutory provision. Such an approach would refine the deference regime to achieve better workability, greater fairness, transparency, and increased public participation. It would also balance the competing regulatory and separation of powers concerns inherent in this critical deference question.