Unearthing the Lost History of Seminole Rock

Abstract

In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole Rock deference — argues that Seminole Rock cannot support the theoretical weight that subsequent courts and evolving administrative law doctrines have complacently put upon it. Seminole Rock was the product of its time — the 1940s, an era of war-time price controls and a new age of administrative law. Later cases wrongly divorced Seminole Rock from that context.

This Article documents the untethering of Seminole Rock. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical, and highly deferential form of agency deference. It further shows this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings. In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

Keywords: Seminole Rock, Auer, deference, administrative law, judicial review