A Rock Unturned: Justice Scalia's (Unfinished) Crusade against the Seminole Rock Deference Doctrine

41 Pages Posted: 21 Sep 2016 Last revised: 28 Apr 2017

See all articles by Kevin O. Leske

Kevin O. Leske

University of Dayton School of Law

Date Written: September 1, 2016


After the untimely passing of Justice Antonin Scalia, many legal scholars wrote about the long-lasting impact that he will have on Article III standing, Second Amendment gun rights, and other important areas of federal law. But one important part of his legal legacy remained unfinished and unnoticed by the academic community. Starting in 2011, Justice Scalia began to express his frustration with a bedrock administrative law deference doctrine that he had “uncritically accepted” in the past. His words, which came in a short concurring opinion in Talk America, Inc. v. Michigan Bell Telephone Co., flagged his newfound skepticism over the validity of the Seminole Rock doctrine. This began an impassioned crusade that would last for the next five years until his death in February, 2016.

Established in 1945, the Seminole Rock deference doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Despite the doctrinal and practical significance of the rule in our administrative state, the Seminole Rock doctrine had remained largely unexamined by the Court. But following Justice Scalia’s statements in Talk America, other justices began to recognize his concern.

The justices’ growing unease about Seminole Rock emerged from the shadows in 2015 in Perez v. Mortgage Bankers Association. Although the case did not directly raise the doctrine, the majority opinion was written narrowly and was accompanied by three separate concurring opinions by Justices Alito, Scalia, and Thomas expressing their views that Seminole Rock should be overruled. Thus, the Court seemed poised to re-evaluate the doctrine. However, following Justice Scalia’s death, the Court’s denial of certiorari in United Student Aid Funds, Inc. v. Bible in 2016 signaled that Justice Scalia’s crusade might be at its end.

This Article explores the evolution of Justice Scalia’s view on the Seminole Rock doctrine, which led to his unfinished campaign to have the Court re-evaluate the doctrine. The analysis highlights the compelling reasons why the Court should not allow his efforts to have been in vain. The Article concludes that the Court should re-examine the doctrine in order to reform Seminole Rock to address the persuasive practical and constitutional concerns expressed by Justice Scalia and other justices.

Keywords: Seminole Rock, Auer, Deference, Chevron, Scalia, Administrative Law

Suggested Citation

Leske, Kevin, A Rock Unturned: Justice Scalia's (Unfinished) Crusade against the Seminole Rock Deference Doctrine (September 1, 2016). Administrative Law Review, Vol. 69, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=2840496

Kevin Leske (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States

HOME PAGE: http://www.udayton.edu/directory/law/leske_kevin.php

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