Beyond Seminole Rock

Aaron L. Nielson
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Abstract

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 whose meaning 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.What has been overlooked, however, is that overruling Seminole Rock would have unintended consequences. This is so because another case, Chenery II, enables agencies to put parties in a similar bind simply by not promulgating rules at all. Under Chenery II, an agency has discretion whether to promulgate industry-wide rules or instead to give meaning to statutes by case-by-case adjudication. Because the doctrines are substitutes for each other, albeit imperfect substitutes, if the Court were to overrule Seminole Rock, agencies that place a high value on their own future flexibility could achieve it by pivoting to Chenery II. Yet for regulated parties, this could be worse than the status quo because even an ambiguous rule generally provides more notice than an open-ended statute. Equally troublesome, because overruling Seminole Rock would discourage rulemaking, it would reduce public participation in the regulatory process.The insight that Seminole Rock and Chenery II are interconnected — meaning what happens to one affects the other — counsels in favor of stare decisis. Importantly, however, if the Supreme Court is inclined to overrule Seminole Rock, it should also revisit aspects of Chenery II to prevent problematic substitution. For instance, the Court could begin affording Skidmore rather than Chevron deference to statutory interpretations announced in adjudications and could also bolster fair notice. Absent such revisions, overruling Seminole Rock may harm the very people the Justices hope to help.
超越塞米诺尔岩石
塞米诺尔岩石的服从——要求法院服从机构对其自身模棱两可的规定的解释——可能是借来的时间。虽然看起来无害,但许多人担心塞米诺尔岩石违反了“同一个人不应该同时制定和解释法律”的格言。事实上,令人担心的是,这种权力的结合可能会激励那些重视灵活性的机构颁布模棱两可的规则,这些规则的含义可以稍后追溯澄清,从而损害那些缺乏法律义务通知的受监管方。结果是,最高法院的几位法官呼吁重新审理塞米诺尔岩石案。然而,被忽视的是,推翻塞米诺尔岩石案可能会产生意想不到的后果。之所以如此,是因为另一个案例——《宪法第二修正案》(Chenery II)——允许政府机构仅仅通过根本不颁布规则就能将当事人置于类似的境地。根据宪法第二章,机构有权自行决定是颁布全行业规则,还是通过逐案裁决来赋予法规意义。由于这些原则是相互替代的,尽管是不完美的替代,如果法院要推翻塞米诺尔洛克案,那么那些高度重视自己未来灵活性的机构可以通过转向第二章来实现这一目标。然而,对于受监管方来说,这可能比现状更糟糕,因为即使是模棱两可的规则,通常也比开放式法规提供更多的通知。同样麻烦的是,因为推翻塞米诺尔岩石案将阻碍规则制定,它将减少公众对监管过程的参与。塞米诺尔岩石和切尼二世是相互关联的,这意味着其中一个发生的事情会影响另一个,这一观点支持先决论。然而,重要的是,如果最高法院倾向于推翻塞米诺尔洛克案,它也应该重新审视宪法第二章的各个方面,以防止有问题的替代。例如,法院可以开始让斯基德莫尔而不是雪佛龙服从判决中公布的法定解释,也可以加强公平通知。如果没有这样的修订,推翻塞米诺尔洛克案可能会伤害到法官们希望帮助的那些人。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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