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“[W]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.” The Federalist No. 47 (James Madison) (quoting Montesquieu). If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine. The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action. But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all. Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power. This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles. [ABSTRACT FROM AUTHOR]

On April 28, 2017, President Donald J. Trump issued Executive Order No. 13795 to implement his vision of an America-First Offshore Energy Strategy. The order is primarily designed to facilitate the Secretary of Interior's efforts to maximize oil and gas lease sales in parts of the Gulf of Mexico, Arctic waters, and mid- and south Atlantic Ocean. And one intent of the executive order is an attempt to nullify former President Barack Obama's withdrawal of approximately 119 million acres of submerged land on the outer continental shelf from oil and gas drilling, which was made under the Outer Continental Shelf Lands Act of 1953 ("OCSLA"). But of equal concern is the executive order's pronouncement that the Trump administration would "refrain from designating or expanding any National Marine Sanctuary" absent a "full accounting from the Department of the Interior ("DOI") of any energy or mineral resource potential." And even more troubling, the order calls for a review of various past designations and expansions of National Marine Sanctuaries and Marine National Monuments within the past ten years. Congress originally enacted the national marine sanctuaries provisions as part of the Marine Protection, Research, and Sanctuaries Act of 1972 ("MPRSA"). It "provide[s] authority for comprehensive and coordinated conservation and management" of "areas of the marine environment which are of special national significance." Based on the Trump Administration's new energy policy, however, some of these protected areas are now in jeopardy. But how significant is this threat? And what if the new administration proposes to "un-designate" or to modify the terms of one of the marine sanctuaries under review. This Article examines these key questions. It introduces the importance of marine ecosystems and explores the national sanctuary provisions in the MPRSA. Next, it explains both President Trump's Executive Order as it relates to national marine areas and the related Department of Commerce action implementing the order. Finally, it assesses the potential impact of Executive Order 13795 on national marine sanctuaries and analyzes the potential success of a proposal to eliminate or alter a sanctuary under review. The Article concludes that the executive order's review of marine sanctuaries is surprisingly limited. Moreover (and ironically), much of the criticisms of the MPRSA levied by environmental advocates will help counter future attempts to "un-designate" a sanctuary. [ABSTRACT FROM AUTHOR]

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 conludes 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. [ABSTRACT FROM AUTHOR]

On December 20, 2016, President Barack Obama invoked his power under section 12(a) of the Outer Continental Shelf Lands Act of 1953 (OCSLA) to "withdraw" approximately 119 million acres of submerged land on the outer continental shelf. The action prevents these areas from being considered for any future exploration, development, or production of oil or gas. Environmental groups hailed this "11th-hour offshore drilling ban" as a significant victory to protect the fragile ecosystems of the Chukchi Sea and parts of the Beaufort Sea in the Arctic, as well as ecosystems along the edge of the continental shelf in the Atlantic Ocean. Congress enacted OCSLA to establish a statutory framework to govern the exploration and extraction of oil and gas on the outer continental shelf lands. In section 12(a) of OCSLA, Congress delegated to the president the authority to "from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf." But on April 28, 2017, President Donald J. Trump issued Executive Order No. 13795 to implement his vision of an "America-First Offshore Energy Strategy." The order purports to rescind President Obama's OCSLA withdrawals. Drilling advocates claim that President Trump can lawfully do so. Environmental groups maintain that he cannot. This Article explores this critical issue by examining the text of OCSLA, unearthing its legislative history, and applying bedrock legal principles such as the separation of powers doctrine. First, the plain language of OCSLA does not provide textual support for a future president to revoke a prior withdrawal. Second, the legislative history demonstrates that Congress was acutely aware of the environmental consequences of mineral development on the shelf. It modeled OCSLA's executive withdrawal provision after the withdrawal provisions it had already created for nonsubmerged lands. For these "uplands" Congress granted the executive branch the power to remove lands, but restricted the president's authority to restore such lands into disposition. Congress intended a similar limitation in section 12(a). Finally, the separation of powers doctrine buttresses the conclusion that a subsequent president cannot revoke a previous withdrawal made under OCSLA section 12(a). A conclusion that a president has implied authority to restore federal lands would effectively allow the executive branch to re-write the statute in violation of the doctrine. [ABSTRACT FROM AUTHOR]

Largely escaping judicial and scholarly examination for close to seventy years, the Seminole Rock deference 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.” But at long last the United States Supreme Court is poised to re-evaluate the doctrine. In March 2015, in Perez v. Mortgage Bankers Association, the Court addressed whether a federal agency was required to follow the notice-and-comment procedures of the Administrative Procedure Act after it changed a prior interpretation of its regulation under the “Paralyzed Veterans doctrine.” Although the Supreme Court unanimously found the Paralyzed Veterans doctrine impermissible, thereby restoring the plain language requirements of the Administrative Procedure Act, the case implicated the Seminole Rock deference doctrine, especially through the several concurring opinions, which focused exclusively on the doctrine. Accordingly, this Article explores the justices’ various opinions in order to explain the compelling practical and constitutional reasons why the Seminole Rock regime cannot be ignored any further. The Article concludes that when the Supreme Court re-examines the doctrine, it should do so with the intent to bring clarity to this important area of federal administrative law. [ABSTRACT FROM AUTHOR]

In Bowles v. Seminole Rock & Sand Co. the United States Supreme Court held that federal courts must defer to an administrative agency's interpretation of its own regulation unless the interpretation "is plainly erroneous or inconsistent with the regulation." Astoundingly, despite its doctrinal significance and practical importance to our administrative state, the Seminole Rock deference doctrine has gone largely unexamined both by the legal community and by the Supreme Court, particularly when compared to the landmark deference doctrines announced in Skidmore v. Swift & Co. and Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. This Article explores the genesis of this deference regime and analyzes the Supreme Court's articulation, application, and interpretation of the Seminole Rock doctrine from its inception in 1945 to the present day. The Article then proposes a new approach to the Seminole Rock doctrine. Under this new approach, courts would apply a two-step test to determine whether to defer to an agency's interpretation of its regulation. By relying upon objective factors, thereby limiting the subjective inquiry, this new approach falls comfortably between Chevron's controlling deference and Skidmore's less deferential treatment that courts currently apply when reviewing an agency's interpretation of a statutory provision. Such an approach would refine the deference regime to achieve better workability, greater fairness, transparency, and increased public participation. It would also balance the competing regulatory and separation of powers concerns inherent in this critical deference question. [ABSTRACT FROM AUTHOR]