Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2016

Publication Title

Yale Journal on Regulation, Notice & Comment

Abstract

Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led by former Scalia clerk John Manning—seemed to rise comfortably, almost casually, in opposition to Auer. Fueled by a few encouraging concurrences, cases percolated through the federal courts that seemed to provide a ripe opportunity for review.

But no longer. The Court reaffirmed Auer last year. And the scholarly waters—if the previous contributions in this symposium and a few longer papers are a reasonable guide—seem a little more brackish than they once did. Casual contempt is now matched with casual acclaim. (Spake Sunstein and Vermeule: “the [Auer] principle is entirely correct.”) Can these datapoints be shoehorned into a prediction? Sure, why not: The Supreme Court isn’t going to overturn Auer and Seminole Rock anytime soon.

Keywords

Administrative Agencies, Seminole Rock, Auer, What Is New in Administrative Law, Deference, Chevron

Publication Citation

Conor Clarke, Why the Supreme Court Might Not Overrule Seminole Rock, Yale J. on Reg. Notice & Comment (2016) https://www.yalejreg.com/nc/why-the-supreme-court-might-not-overrule-seminole-rock-by-conor-clarke/

Comments

Symposium titled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. The full Symposium is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847668

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