Paul J. Larkin, Jr. (The Heritage Foundation) & Elizabeth Slattery (The Heritage Foundation) have posted Essay: The World After Seminole Rock and Auer (42 Harv. J. L. & Pub. Pol'y, Issue 2, Forthcoming) on SSRN. Here is the abstract:
For more than 70 years, the Supreme Court of the United States has consistently held that the federal courts must defer to an agency’s interpretation of a vague or ambiguous agency rule. The Court adopted that principle in Bowles v. Seminole Rock & Sand Co., and it has long treated the ruling as if it were a statute rather than an opinion by applying it in a wide range of contexts with little regard to whether their facts resemble the ones that gave rise to the Court’s original decision. Seminole Rock gave birth to what has become a well-settled administrative law doctrine, one that the Supreme Court and lower courts have cited on more than a thousand occasions.