Notice & Comment

Notice & Comment

Notice & Comment

Between Seminole Rock and a Hard Place: A New Approach to Agency Deference, by Kevin Leske

There is no question that there are both weighty constitutional concerns and practical problems with the Seminole Rock doctrine that impede the achievement of consistency, fairness and transparency in our modern administrative state. These concerns coupled with the confusion and inconsistencies in the lower courts when they attempt to apply Seminole Rock’s “plainly erroneous or […]

Notice & Comment

Rejecting Auer: The Utah Supreme Court Shows the Way, by James Phillips & Daniel Ortner

For decades, the Supreme Court of Utah reviewed agency action under either express or implicit “delegations of discretion” for abuse of discretion. This approach “proved difficult to apply” and resulted in widely inconsistent decisions that depended on whether a court found that a statute granted an implicit delegation of power. So in 2013 the Utah […]

Notice & Comment

Auer, Now and Forever, by Cass R. Sunstein & Adrian Vermeule

(This post is adapted from The Unbearable Rightness of Auer, U. Chi. L Rev. forthcoming) For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court – although we will see the […]

Notice & Comment

Why Seminole Rock Should Be Overruled, by Allyson N. Ho

Seminole Rock (or Auer) deference requires courts to defer to an agency’s interpretation of its own regulation “unless that interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1337 (2013). Courts will defer even when the agency’s interpretation is not “the only possible reading of […]

Notice & Comment

Auer and the Incentives Issue, by Ronald M. Levin

At the center of the challenge to Auer deference is the thesis that the deference prescribed in that case gives agencies an incentive to write regulations vaguely, so that they will subsequently be able to adopt interpretations of those regulations that have not undergone the rigors of the notice and comment process but will nevertheless […]

Notice & Comment

What “Sex” Has to Do with Seminole Rock, by Jonathan H. Adler

All G.G. wanted was to be like other high schoolers, and use the bathroom that corresponds with his gender identity. Yet this small request triggered a high-profile legal battle over the meaning and application of Title IX that may be well on its way to the U.S. Supreme Court. After losing in the U.S. Court […]

Notice & Comment

Auer Federalism: Preemption and Agency Deference, by Catherine Sharkey

An August 13, 2016 New York Times article reports that “Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.” Putting to one side the detail that agencies authorized by Congress—not the President—promulgate regulations, the article looks behind the widespread public perception that “President Obama […]

Notice & Comment

Donald Trump and the Federal Reserve

Central bankers often insist that ideology, values, worldview, and—that much-hated term—politics play no role in influencing their decisions. This is a very useful dodge on their part. It’s a dodge because, as I have argued in my book The Power and Independence of the Federal Reserve, expertise is inevitably and appropriately ideological, the process that […]

Notice & Comment

Auer in the Circuit Courts, by David Feder

Auer matters. It makes the difference between winning and losing on important issues that matter to real people—such as what bathroom a transgender student may use, what costs foreign employees must be reimbursed for, and the proper sentence for a convicted criminal. Consider these recent examples: 1. G. ex rel. Grimm v. Gloucester County School Board, […]

Notice & Comment

Administrative Law Without Courts

This Friday the Florida State University College of Law is hosting a terrific conference entitled Environmental Law Without Courts. The conference builds on the law school’s prior conference on environmental law without Congress. As the conference website explains, “[t]his conference will bring together prominent environmental and administrative law scholars from across the country, and explore […]

Notice & Comment

Reactions to the GAO Report Highlighting Flawed IRS Rulemaking Procedures

At the request of Senator Hatch and other lawmakers, the Government Accountability Office recently released a report on various IRS guidance procedures.  The report’s title (“Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance”) gives away its conclusion — the Treasury and OMB have not carefully considered why the government creates […]

Notice & Comment

Seminole Rock in Tax Cases, by Steve R. Johnson

This article is not about the wisdom or lack thereof of Auer/Seminole Rock (“ASR”). Instead, it explores an aspect of ASR “on the ground.” Specifically, this article considers the considerable gaps between how the Supreme Court has framed the doctrine and how the United States Tax Court has applied (or not applied) it. Some of […]

Notice & Comment

Seminole Rock in Environmental Law: A Window Into Weirdness, by Daniel Mensher

Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies […]