Seminole Rock and the Separation of Powers

By Kovvali, Aneil | Harvard Journal of Law & Public Policy, Spring 2013 | Go to article overview

Seminole Rock and the Separation of Powers


Kovvali, Aneil, Harvard Journal of Law & Public Policy


Under the longstanding precedent of Bowles v. Seminole Rock & Sand Co., (1) a court will defer to an agency's interpretation of its own regulation unless that interpretation "is plainly erroneous or inconsistent with the regulation." (2) The Supreme Court reaffirmed this principle in Auer v. Robbins, (3) and has confidently applied it ever since. (4)

But Seminole Rock deference has also faced significant criticism. In one critique, Professor John Manning argues that Seminole Rock creates perverse incentives by unifying the powers of lawmaking and law-exposition. (5) According to Manning, this characteristic distinguishes Seminole Rock deference from its more famous cousin, Chevron deference. (6) Chevron respects the basic constitutional structure by maintaining the separation between "lawmaking" and "law-exposition." (7) Under Chevron, Congress makes the laws that the executive agency interprets. (8) Under Seminole Rock, the agency itself writes the rules that the agency interprets. (9) By erasing the separation between lawmaking and law-exposition, Seminole Rock creates bad incentives: an agency can grant itself power and flexibility by promulgating vague rules. (10)

In this Note, I contend that separation of powers arguments have a limited domain: only some statutes allow an agency to unify the powers of lawmaking and law-exposition. Many statutes already lay out the substantive basis for agency action. When agencies act under such statutes--whether by rulemaking or otherwise--they are interpreting the law, not creating new obligations.

This clarification has important implications. First, separation of powers arguments have been gaining traction. Justice Scalia, the author of Auer and a once-staunch defender of Seminole Rock deference, (11) recently confessed doubts about Seminole Rock's validity in an opinion drawn from Manning and Montesquieu. (12) If proponents of this view are successful in abolishing Seminole Rock deference, interpretive authority will inevitably shift away from agencies and toward courts.

Second, the discussion sheds light on the broader methodological question of whether constitutional values or congressional intent serves as a better organizing principle for deference doctrine. Professor Manning seeks to derive values from the Constitution and to apply them in a distinctive context. Certain aspects of this program are surely beyond reproach. Judges would be well-advised to draw upon the many wise policy decisions incorporated into the Constitution; unlike academic articles or legislative history, the document is also an unquestionably legitimate external source of guidance. But the lessons of the Constitution are not always clear, and never self-applying. Correctly understood, the separation of powers argument does not support a total rejection of Seminole Rock. Instead, this argument counsels in favor of a new and more careful inquiry into the structure of the particular statutory scheme at issue. Thus, constitutional values may be a less useful organizing principle for this area of the law than a search for congressional intent.

I. NOT ALL RULEMAKING IS "LAWMAKING"

The process of agency adjudication is based on the executive and judicial models of decisionmaking. The notice-and-comment rulemaking process is based on a legislative model. But despite their beguiling forms, the mechanism that the agency uses to make decisions is imperfect evidence of the true nature of the power that the agency is exercising. When an agency engages in rulemaking, it is not necessarily exercising lawmaking power, in the sense of creating new substantive duties for individuals outside the agency. New rules do not always create new opportunities for regulated entities to get into trouble. Indeed, many rules actually reduce the potential for trouble by clarifying existing, vague duties imposed by statute.

Consider the National Labor Relations Board's (NLRB's) reluctance to promulgate rules.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Seminole Rock and the Separation of Powers
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.