Context-Specific Seminole Rock Reform

Abstract

Under Bowles v. Seminole Rock, courts will defer to an administrative agency’s interpretation of rules that the agency produced. For decades, Seminole Rock deference was an uncontroversial part of the administrative law landscape. But recently, the doctrine has come under siege. Drawing on concerns about the flexible structure of the administrative state, critics of the doctrine have won an increasingly sympathetic ear on the Supreme Court and in Congress. This Essay suggests that any reform of Seminole Rock should be driven by three principles: fidelity to congressional intent, avoidance of undesirable side effects, and careful targeting of a clear problem. The Essay goes on to argue that these goals can best be satisfied by tailoring deference to the context created by each regulatory regime. For courts, this would mean looking to guideposts in the underlying statutes that authorize agency action. For Congress, this would mean specifying the level of deference on a statute-by-statute basis. The resulting context-specific Seminole Rock regime would avoid many of the pitfalls that have plagued past reform efforts, while placing the doctrine on a proper footing.

Keywords: Seminole Rock, Auer, Administrative Law, Deference

JEL Classification: K23, K40