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Kevin O. Leske

Abstract

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court in 2024 overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., ending the Chevron doctrine’s reign as the applicable rule for courts to use in reviewing agency interpretations of their authorizing statute. Although Chevron’s demise was no great surprise, the Court’s decision leaves myriad questions that may take decades to answer. The most pressing question is: what is now the precise standard that courts must apply to determine statutory meaning in these cases? But there is a related question that is equally important to our ever-changing administrative state. In light of Loper Bright, what is now the standard for determining regulatory meaning?  

In 1945, the Court in Bowles v. Seminole Rock & Sand Co. established a lesser-known administrative law doctrine. In Seminole Rock, the Court held that federal courts must defer to an administrative agency’s interpretation of its own regulation unless the interpretation “is plainly erroneous or inconsistent with the regulation.” Despite both its doctrinal significance and profound practical importance to our administrative state, the Seminole Rock deference doctrine, which is also called “Auer deference,” had escaped scholarly and judicial scrutiny, especially when compared to Chevron’s deference rule for judicial review of an agency’s interpretation of a statute. 

Although in its 2019 decision in Kisor v. Wilkie, the Court narrowly upheld Seminole Rock, it cabined the doctrine by expounding on the requirements that must be met before courts can defer under Seminole Rock. However, the Court’s 2024 decision in Loper Bright could leave Seminole Rock between a rock and a hard(er) place than before. The Court’s rejection of the Chevron deference doctrine and its seemingly sweeping language that courts must use “independent judgment” when reviewing agency interpretations make Seminole Rock’s future both fragile and indeterminate.  

Accordingly, in this article, I continue my exploration of the Seminole Rock doctrine. I uniquely contribute to the existing scholarship by analyzing and assessing the impact of the Court’s decision in Loper Bright on the Seminole Rock doctrine. By critically examining the Loper Bright decision, I first explain why the Loper Bright decision might not be as revolutionary as some decry. I conclude that the Seminole Rock doctrine should survive Loper Bright. But because the Seminole Rock standard will not emerge unscathed, I then sketch out a new(er) approach for courts to apply when determining whether to defer. This test, which is based on the Seminole Rock standard, as elucidated by Kisor v. Wilkie, remains faithful to Seminole Rock while incorporating the holdings of Loper Bright in a way that would reconcile pragmatic and doctrinal concerns with the doctrine. 

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