Beyond Seminole Rock
Citation: 105 Geo L.J. (2017)
Seminole Rock deference—which requires courts to defer to an agency’s interpretation of its own ambiguous regulations—may be living on borrowed time. Although it might seem harmless, many worry that Seminole Rock violates the maxim that the same hands should not both make and interpret the law. Indeed, the fear is that this combination of powers may create incentives for agencies that value flexibility to promulgate ambiguous rules that they can later clarify retroactively to the detriment of regulated parties who lack notice regarding their legal obligations. The upshot is that several Justices of the Supreme Court have called for Seminole Rock to be revisited.