18 Pages Posted: 28 Jun 2017 Last revised: 8 Jul 2017
Date Written: June 27, 2017
Judicial deference to administrative agencies is under attack. The most besieged beachhead of judicial abnegation is the rule that courts must defer to agencies’ interpretations of their own regulations. Critics charge that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is. This essay offers a different argument for why Auer is bad law, namely that it is literally, and more prosaically, bad law.
Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock suggests an unremarkable application of the less-deferential standard of review associated with the case Skidmore v. Swift & Co. Seminole Rock was a plainly correct application of Skidmore deference, given the case’s circumstances and the era’s assumptions about interpretation. More importantly, it is implausible to read Seminole Rock as supporting Chevron-like deference premised on delegated lawmaking authority. Rather, Seminole Rock is a classically legalist opinion, or, more precisely, is an ordinary deployment of one form of good, old-fashioned legalism, namely intentionalist interpretation as applied in the administrative context.
The Supreme Court’s largely unthinking transition from Seminole Rock to Auer was not one of doctrinal necessity. Rather, Auer deference is an anachronistic reading of Seminole Rock through Chevron-filtered lenses. The standard shorthand label of “Seminole Rock/Auer” deference therefore runs together two very different kinds of deference regimes and it is worth decoupling them. The doubts about Auer doctrine in its current form, moreover, flow from this generalization and extension of Seminole Rock beyond the interpretive framework in which it was originally at home. These conclusions shed new light on contemporary worries about Auer deference, ground the Court’s recent limitations on the doctrine, and lower the stakes for overruling it altogether. After Auer, the Court can return to Seminole Rock.
Keywords: Administrative Law, Seminole Rock, Auer, Chevron, Judicial Review
JEL Classification: K10, K20
Suggested Citation: Suggested Citation
Pojanowski, Jeffrey A., Revisiting Seminole Rock (June 27, 2017). Georgetown Journal of Law & Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2993473