This Note offers some additional thoughts on the outer limits of Seminole Rock deference. Part I discusses the three concerns associated with unchecked Seminole Rock deference that comprise the self-delegation problem—violation of constitutional norms, exploitation of a statutory loophole, and perverse incentives. It explores the potential for abuse they create and recommends what the limitations should look like in order to avoid this potential. Part II explains the two rationales for Seminole Rock deference: the pragmatic and originalist rationales. It describes how the two rationales relate to each other, explains how courts use pragmatic and originalist arguments in their opinions, and recommends a new way to think about the two rationales in light of these considerations. Part III traces the boundaries of Seminole Rock deference while taking into account how both rationales justify judicial deference to an agency’s reasonable interpretation of its own regulation. This Note will indicate which of Stephenson and Pogoriler’s proposed limitations are strengthened by considering the originalist rationale and which of Stephenson and Pogoriler’s proposed limitations are unaffected by considering the originalist rationale. Finally, this Note will argue for the adoption of a limitation that flows from the originalist rationale: a consistency limitation.
Stephen M. DeGenaro,
Why Should We Care About an Agency’s Special Insight?,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss2/8