Notice & Comment

Henry Hart’s Brief, Frank Murphy’s Draft, and the Seminole Rock Opinion by Aditya Bamzai

In the summer of 1942, Professor Henry Hart, then ten years into his career as a law professor, temporarily left the Harvard Law faculty to become an associate general counsel at the Office of Price Administration, an agency responsible for setting prices throughout the World War II-economy. Just under three years later, Hart argued the government’s side in the most consequential case that he handled while in public service, Bowles v. Seminole Rock. The opinion in that case, written by Justice Frank Murphy, formed the basis for the doctrine that still sometimes bears its name — Seminole Rock deference, under which a reviewing court defers to an agency’s interpretation of its own ambiguous regulation.

There are many things that could be said about this doctrine, but I’ll focus on the following: I’ve dug up Hart’s brief and Murphy’s case file, neither one of which, to my knowledge, has been the subject of study to date. This post is my attempt to make sense of them. For those readers inclined to draw inferences about the meaning of the Seminole Rock opinion from its drafting history, the Hart brief and the Murphy drafts tend to suggest a particular interpretation of the case and to situate the opinion in the jurisprudential happenings of the era. For those not inclined to view the drafting history of Supreme Court opinions as relevant — and I certainly understand and have some sympathies for that impulse (e.g., Adrian Vermeule, Judicial History, 108 Yale L.J. 1311 (1999)) — let’s chalk up this blog post as an effort, in the tradition of the Greek historian Xenophon, “to record the minor deeds of serious men.”

1. Murphy’s drafts. Of most relevance to the current debate over the scope of Seminole Rock, following his initial circulation, Justice Murphy changed the language in the critical paragraph of the opinion that sets forth the standard of review. Murphy’s circulated draft provided that “[t]he intention of Congress or the principles of the Constitution have no direct relevance when the sole issue is to resolve a dispute as the meaning that an administrative agency intended to attach to one of its regulations.” It was for that reason, the draft proceeded to contend, that “the administrative interpretation becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” In joining the opinion, Justice Rutledge remarked that he was “dubious” that the “intention of Congress or the principles of the Constitution have no direct relevance” to the proper construction of a regulation, because (as Rutledge put it) “in case of doubt or ambiguity construction to conform with constitutional or statutory requirements would seem to be both relevant and necessary.” Rutledge proposed an edit to this sentence, which Murphy adopted with minor changes. In principal part, this edit replaced Murphy’s earlier contention that congressional intent or the Constitution has “no direct relevance” with the language of the final opinion. Those sources, the opinion now said, “in some situations may be relevant in the first instance in choosing between various constructions.” Most pertinently, in making that edit, Murphy also cut the remainder of the sentence that suggested that the “dispute [was about] the meaning that an administrative agency intended to attach to one of its regulations” — so that the opinion no longer contains an express reference to what the “administrative agency intended” about its own regulation.

Second, Murphy’s circulated draft claimed that “[t]he plain words of Maximum Price Regulation No. 188 . . . compel[led]” the holding reached in the case. When Justice Frankfurter joined the opinion, however, he sent Murphy a note suggesting that this language be changed. The note remarked that “[c]onsidering the not-so-plain formulation of No. 188, do you think it wise to say the ‘plain words’ compel”? Murphy responded by striking the reference to the regulation’s “plain words” and replacing it with “[o]ur reading of the language of” the relevant section of Maximum Price Regulation No. 188.

2. The government’s brief. Murphy’s draft mirrored the arguments in the government brief filed by Hart. In the brief (at 12-16), the government first argued that the “plain terms” of the regulation supported its interpretation. The brief (at 12, 16, 18-20) then argued that the Court should give “weight” to the agency’s “settled administrative construction” and its “consistently and repeatedly reaffirmed administrative interpretation,” which was embodied in a bulletin issued “[c]oncurrently with the issuance of the” regulation. In light of the “[m]illions upon millions of transactions [that] have been settled” under the government interpretation, the brief (at 20) continued, “[t]hat construction can [ ] claim for itself all the weight to which settled practice in human affairs is entitled.” And the brief criticized the lower court for treating the “settled administrative construction of the regulation . . . as if it were a position taken for the first time in this lawsuit.”

The fundamental point, the brief contended, was that “weight” ought “to be given to [the administrator’s] construction of his own regulations” in part because “he is explaining his own intention, not that of Congress.” In this respect, the brief (at 21) faulted the lower court for concerning itself “with how the administrative discretion should have been exercised in order to conform to the statute, and not with what the Administrator’s regulation was intended to mean.” “The court’s sole function,” the brief (at 21-22) argued, “was to interpret the regulation—that is, to give it the meaning which the Administrator intended it to have” — with “the ultimate criterion [being] the intention of the writer of the document.”

3. Some possible implications. As I suggested in my introduction to this blog post, reliance on “judicial history” of this kind poses conceptual difficulties. I hesitate to draw conclusions from the archival documents, but with the recognition that the materials are open to interpretation, I’ll venture a few.

First, scholars have long observed that Seminole Rock can be read in several different ways. The opinion at one point claims that the regulation “clearly applies to the facts of this case,” and at another point stresses that the agency’s interpretation was “issued . . . concurrently with” the regulation. The exchanges between the Justices suggest why these claims are present. Murphy, it appears, was quite willing to rely on a “plain language”-style argument about Maximum Price Regulation No. 188, but Frankfurter was not. As a result, the opinion contains much of Murphy’s “plain language” argumentation, but lacks his “plain words” punchline.

More importantly, Murphy’s remedy for Justice Rutledge’s edit removed his prior text that the “dispute” in the case hinged on “the meaning that an administrative agency intended to attach to one of its regulations.” That removal seems inadvertent — in the sense that neither Murphy nor Rutledge appeared to have any objection to this aspect of the sentence. But it had the effect of removing the link between the rule announced in Seminole Rock (“the administrative interpretation becomes of controlling weight”) and the justification for the rule (the court must find “the meaning that an administrative agency intended to attach”). That removal is potentially relevant because the justification for the announced rule may well tell us something about the envisioned scope of the rule.

Second, Seminole Rock is an important case not merely for the specific doctrinal issue it addresses, but also because of the year — 1945 — it was issued. One year later, Congress enacted the Administrative Procedure Act (“APA”) to establish, broadly speaking, scope-of-review rules governing the relationship between reviewing courts and the executive branch. An important question is whether the APA’s scope-of-review provision leaves in place, or rejects, Justice Murphy’s approach in Seminole Rock. In his reply brief in Perez v. Mortgage Bankers Association, for example, the Solicitor General claimed that the “Court’s Seminole Rock decision . . . confirmed—prior to the enactment of the APA—that [ ] deference principles apply on judicial review.” By contrast, the petitioners in the recent Gloucester County litigation have suggested that the text of the APA repudiates Seminole Rock. The APA, the Gloucester County petitioners observe, provides that a “reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Because, they argue, “[n]o one thinks the APA’s command to ‘interpret constitutional . . . provisions’ requires courts to defer to an agency’s beliefs on what the Constitution means,” the parallel statutory command for rulemaking cannot “be reconciled with a regime that requires the judiciary to defer to an agency’s interpretation of its regulations.”

There is, however, a way to reconcile a limited understanding of Seminole Rock with the text of the APA — and it is, perhaps not coincidentally, the way suggested by the Murphy draft and the Hart brief. In the realm of constitutional law, a reviewing court may well “interpret [a] constitutional . . . provision” by reference to Executive Branch interpretations, so long as those interpretations provide evidence for what the drafters of the constitutional provision “intended” at the time of enactment or evidence of a “settled construction” of the provision by the political branches. Both the Murphy draft opinions and the Hart brief point to this understanding of Seminole Rock, which (if accepted) would harmonize the case with the practice of constitutional interpretation and, as a result, retain the APA’s parallelism between the interpretation of constitutional and other provisions.

Third, stepping back from this skirmish about Seminole Rock’s meaning, the broader question is how courts ought to interpret legal text contained in public documents generally — and specifically, whether one set of generalized interpretive principles should govern constitutional provisions, statutes, and regulations alike, or whether a cluster of disparate doctrines (each associated with idiosyncratic Supreme Court pronouncements like Chevron and Seminole Rock) ought to govern different kinds of legal documents differently.

On this question, my instincts are of the simplifying variety: One rule to bind them all. And in this regard, the recent efforts to construct a constitutional separation-of-powers argument against Seminole Rock’s validity strike me as misguided, because they tend to stress the differences between interpreting regulations and interpreting other public documents. If (as I have suggested above) Seminole Rock was about “deferring” to an agency’s contemporaneous or settled construction of its own regulation, then Justice Murphy merely applied background interpretive techniques (about authorial intent) to an arguably new context (rulemaking). If that was the case, there was nothing constitutionally problematic about his interpretive approach. If later cases have extended Seminole Rock, then the proper objection to those later holdings would hinge on the formal argument that the extension departs from the text of the APA (and the interpretive principles it incorporated), as well as the prudential argument that maintaining one set of interpretive principles for constitutional and regulatory text alike is both easier for courts and better for an enlightened citizenry.

Download the government’s brief in Seminole Rock here.

Download Justice Murphy’s files from Seminole Rock here.

Aditya Bamzai is an associate professor at the University of Virginia School of Law. He teaches and writes about civil procedure, administrative law, federal courts, national security law, and computer crime.

This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.

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