Academic journal article Harvard Journal of Law & Public Policy

The World after Seminole Rock and Auer

Academic journal article Harvard Journal of Law & Public Policy

The World after Seminole Rock and Auer

Article excerpt

For more than seventy years, the Supreme Court of the United States has consistently held that the federal courts must defer to an agency's interpretation of its own vague or ambiguous rule. The Court first adopted that principle in 1945 in Bowles v. Seminole Rock & Sand Co. (1) and reaffirmed Seminole Rock two decades ago in Auer v. Robbins. (2) Moreover, from 1945 to today, the Court has consistently treated Seminole Rock as if it were a statute rather than an opinion by applying its ruling 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. (3) The upshot is that Seminole Rock produced what has become a well-settled administrative law rule, one that the Supreme Court and lower courts have cited on more than one thousand occasions. (4)

Despite all that, the Supreme Court should "retire" the Seminole Rock rule. (5)

Wrong when decided in 1945, Seminole Rock should have passed into history when Congress enacted the Administrative Procedure Act (APA) the following year. The APA directs courts to review and set aside agency actions that rest on an erroneous view of the law. (6) This command forbids the courts from granting agencies final law-interpreting authority, as Seminole Rock directs. The strongest argument for retaining Seminole Rock rests on the need to trust the expert judgment of agency officials on how to implement complex regulatory regimes. Yet, we can retain the value of that expert judgment without divesting the courts of their historic responsibility to define the law. Giving an agency's opinion the same heft that a court would afford a treatise by Phil Areeda or Charles Allen Wright or a Restatement of the Law by the American Law Institute would preserve both the courts' historic role and the benefits of agency expertise. In Kisor v. Wilkie, the Supreme Court has an opportunity this Term to correct its mistake in Seminole Rock. (7) It should.


The ruling in Seminole Rock stands in tension with two far more deeply settled principles of Anglo-American law. One is the proposition set forth by Chief Justice John Marshall in 1803 in Marbury v. Madison that it is "emphatically the province and duty of the judicial department to say what the law is." (8) That was no novel pronouncement. English courts crafted a common law of torts, contracts, and crimes for centuries before England populated North America. (9) American colonial and state courts exercised the same common law decision-making authority as English courts from the nation's earliest days. (10) The Judicial Power Clause of Article III of the Constitution vested the authority to decide questions of law in federal courts. (11)

The second doctrine can be seen in the maxims "Nemo judex in cause sua"--"No one may be a judge in his own cause"--and "Audi alteram partem"--" A judge must hear both sides of a case before deciding it." The former principle traces its lineage to Judge Edward Coke's 1610 decision in Dr. Bonham's Case. (12) Coke does not stand alone. William Blackstone, (13) James Madison, (14) a host of Supreme Court justices, (15) and others have endorsed that principle without hesitation or qualification since Coke first applied it. The second maxim reaches back even further--to Demosthenes, Euripides, and Cicero (16)--and reaches forward to both old and contemporary English and American law. (17) The English courts developed an adversarial system of adjudication, rather than the inquisitorial system used on the European continent. Together those maxims presume 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 a legal issue in any case where the federal government is a party. (18) By so doing, the Seminole Rock decision trespasses on the principles underlying those maxims. …

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