The World After Seminole Rock and Auer

24 Pages Posted: 6 Feb 2019 Last revised: 9 Apr 2019

Date Written: January 30, 2019

Abstract

For more than 70 years, the Supreme Court of the United States has consistently held that the federal courts must defer to an agency’s interpretation of a vague or ambiguous agency rule. The Court adopted that principle in Bowles v. Seminole Rock & Sand Co., and it has long treated the ruling as if it were a statute rather than an opinion by applying it in a wide range of contexts with little regard to whether their facts resemble the ones that gave rise to the Court’s original decision. Seminole Rock gave birth to what has become a well-settled administrative law doctrine, one that the Supreme Court and lower courts have cited on more than a thousand occasions.

The Supreme Court should overrule it.

Wrong when decided in 1945, Seminole Rock should have passed into history when Congress enacted the Administrative Procedure Act (APA), which directs courts to review and set aside agency actions that rest on an erroneous view of the law. The ruling also stands in obvious tension with two far more deeply settled principles of Anglo-American law: the proposition set forth in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is” and the principle — which traces its lineage to maxims that stretch back to Judge Edward Coke, William Blackstone, Demosthenes, and Cicero — that judges will be independent from the parties to a dispute. The Seminole Rock decision, however, effectively empowers one party to a lawsuit — a federal agency — to decide the legal issue. To date the Supreme Court has never recognized the existence of this conflict, let alone attempted to resolve it. The Supreme Court has an opportunity this Term to correct its mistake and “retire” Seminole Rock in Kisor v. Wilkie. The world as we know it would not end if the Court did so. While federal courts would no longer be constrained by an agency’s unpersuasive, unreasonable, or unlawful construction of a regulation, agencies would still operate much the same, issuing regulations that touch on nearly every aspect of Americans’ daily lives, from highways to healthcare. It is time for courts — not agency officials — to decide questions of law.

Keywords: Seminole Rock, Auer, Skidmore, Administrative Law, Standard of Review

Suggested Citation

Larkin, Jr., Paul James and Slattery, Elizabeth, The World After Seminole Rock and Auer (January 30, 2019). 42 Harv. J. L. & Pub. Pol'y 625 (2019). Available at SSRN: https://ssrn.com/abstract=3325278 or http://dx.doi.org/10.2139/ssrn.3325278

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

Elizabeth Slattery

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States

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