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Abstract

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the months leading up to his confirmation hearing, legal scholars pored over his opinions while he was a judge on the U.S. Court of Appeals for the Tenth Circuit, and they had already unearthed his discomfort with the Chevron doctrine. Similarly, through an analysis of his originalism ideology and textualist approach to judicial decision-making, they have attempted to predict how Justice Gorsuch will decide future cases in other important areas of the law.

To date, however, Justice Gorsuch’s view on the Seminole Rock deference doctrine has gone unexamined by scholars. Known as Chevron’s “doctrinal cousin,” the Seminole Rock doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Especially given the profound practical importance of the doctrine in our administrative state and the Court’s recent interest in it, an assessment of Justice Gorsuch’s view is not merely academic.

This essay provides that assessment. First, the essay examines the Seminole Rock deference doctrine and explores the Court’s recent interest in the doctrine. Part II analyzes Justice Gorsuch’s likely view on the Seminole Rock doctrine by examining key Tenth Circuit opinions that will influence his view on Seminole Rock while on the Supreme Court. The essay concludes that although Justice Gorsusch would likely be very skeptical of Seminole Rock, he should ultimately choose to retain the doctrine provided that the Court continues to provide safeguards that would mitigate or even mute any perceived over-reach that the application of Seminole Rock allows in our administrative state.

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