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Skidmore deference

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.


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Skidmore deference, in the context of administrative law, is a principle of judicial review of federal agency actions that allows a federal court to defer to an agency's interpretation of a statute according to the agency's ability to demonstrate persuasive reasoning. Skidmore differs from other types of deference, such as Chevron deference, by not requiring courts to defer to an agency's interpretation of an ambiguous statute. Instead, the court can determine the amount of deference or respect to extend to an agency's interpretation, based on its ability to demonstrate that the interpretation is based on valid reasoning.

Skidmore deference was developed by the U.S. Supreme Court in the 1944 case Skidmore v. Swift & Co. and reaffirmed in the 2000 case Christensen v. Harris County, which indicated Skidmore should apply to agency interpretations of nonbinding agency actions, such as guidance, policy statements, or enforcement guidelines.

The Supreme Court ruled in 2024 in Loper Bright Enterprises v. Raimondo to overturn Chevron deference, which previously compelled federal courts to defer to an agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The decision shifted other types of deference—such as Skidmore and Auer deference–into a period of uncertainty. Justice Elena Kagan in her dissenting opinion in Loper Bright argued, "the majority makes clear that what is usually called Skidmore deference continues to apply. ... If the majority thinks that the same judges who argue today about where 'ambiguity' resides ... are not going to argue tomorrow about what 'respect' requires, I fear it will be gravely disappointed."[1]

Christopher J. Walker from the Yale Journal on Regulation Notice and Comment blog argued the use of Skidmore following Loper Bright could also establish inconsistent precedent. Writing about the use of Skidmore deference in a September 2024 United States Court of Appeals for the Ninth Circuit panel decision, Walker argued, "The fundamental holding in Loper Bright was clear: Courts must independently interpret statutes and should no longer defer to agencies’ interpretations of them. The Panel decision here ... revives Chevron under a different name. In the guise of giving Skidmore 'respect' to a precedential statutory-interpretation decision ... the Panel effectively deferred to the BIA’s views."[2]

Background

See also: Guidance (administrative state)

Skidmore deference, developed in the opinion for the 2000 U.S. Supreme Court case Christensen v. Harris County and named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co., allows a federal court to defer to an agency's interpretation of a statute that it administers according to the agency's ability to demonstrate persuasive reasoning in the case. According to Justice Clarence Thomas' opinion in Christensen v. Harris County, Chevron deference is binding for agency rules developed through administrative rulemaking while Skidmore deference is applied to agency interpretations "such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines." These types of agency interpretations are generally issued in the form of guidance documents, which are not required to be developed through the rulemaking process.[3][4]

Justice Robert H. Jackson's opinion in Skidmore v. Swift & Co. states:[3]

“ We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.[5][6] ”

Unlike Chevron deference, a federal court exercising Skidmore deference is not compelled to defer to an agency's interpretation of a statute. Instead, the court determines the appropriate level of deference in each case based on the agency's ability to demonstrate that its interpretation is based on sound reasoning.[7][8]

The U.S. Supreme Court reaffirmed Skidmore deference in the 2001 case United States v. Mead Corporation. The court held that Chevron deference applies to agency regulations and adjudicatory actions while other agency actions, such as interpretations, guidance, or policy statements, are relegated to consideration under Skidmore deference.[9]

Theory and practice

Is deference unnecessary?

Mike Rappaport, professor of law and director of the Center for the Study of Constitutional Originalism at the University of San Diego, argued in a 2018 article for Law and Liberty that Skidmore deference is unnecessary since an agency's expertise can be evaluated in each case through its opinions and briefs. In addition, Rappaport claimed that Skidmore deference demonstrates bias in favor of government agencies since private parties may also possess expertise that is not entitled to similar deference:[10]

“ [I]f Skidmore deference is justified based on expertise, then why is such deference applied only to government agencies? After all, private parties can also be quite expert about particular areas. While the Federal Communications Commission may have significant expertise about telecommunications, so will established companies, such as Verizon or ATT, who regularly must comply with telecommunications statutes and regulations and have access to accomplished lawyers. The failure to accord private parties deference suggests that Skidmore confers a privilege on the government.[10][6] ”


Vague bounds of Skidmore deference

In his dissent in the 2001 U.S. Supreme Court case United States v. Mead Corporation, Justice Antonin Scalia argued that Skidmore deference had created a vague, sliding scale of deference that would result in uncertainty and increased litigation:[11]

“ And finally, the majority's approach compounds the confusion it creates by breathing new life into the anachronism of Skidmore, which sets forth a sliding scale of deference owed an agency's interpretation of a statute that is dependent 'upon the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control'; in this way, the appropriate measure of deference will be accorded the 'body of experience and informed judgment' that such interpretations often embody. Justice Jackson's eloquence notwithstanding, the rule of Skidmore deference is an empty truism and a trifling statement of the obvious: A judge should take into account the well-considered views of expert observers.[11][6] ”

Noteworthy events

U.S. Supreme Court declines to review Skidmore deference in Dupont v. Smiley (2018)

The United States Supreme Court declined to grant certiorari in DuPont v. Smiley on June 28, 2018. The case questioned whether or not executive agencies are entitled to receive Skidmore deference when a court reviews an agency interpretation arrived at through litigation rather than adopted through the rulemaking process. These types of agency interpretations are not entitled to Chevron deference until they are adopted through the rulemaking process at a later time.[12][13]

Justice Neil Gorsuch was joined by Justice Clarence Thomas in an opinion regarding the Supreme Court’s refusal to examine Skidmore deference in Dupont v. Smiley:[12]

“ The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions. For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation? Don't serious equal protection concerns arise when an agency advances an interpretation only in litigation with full view of who would benefit and who would be harmed? Might the practice undermine the Administrative Procedure Act's structure by incentivizing agencies to regulate by amicus brief, rather than by rule? Should we be concerned that some agencies (including the one before us) have apparently become particularly aggressive in ‘attempt[ing] to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation’? … Respectfully, I believe this circuit split and these questions warrant this Court's attention. If not in this case then, hopefully, soon.[12][6] ”

Other types of deference

See also: Deference in the context of the administrative state

Below is a list of various deference regimes cited by the U.S. Supreme Court in agency interpretation cases:[14]

  • No deference: ad hoc judicial reasoning
  • Anti-deference: the court invokes a presumption against the agency interpretation in criminal cases (the rule of lenity) and in some cases in which the agency interpretation raises serious constitutional concerns (the canon of constitutional avoidance)
  • Consultative deference: the court, without invoking a named deference regime, relies on some input from the agency (e.g. amicus briefs, interpretive rules or guidance, or manuals) and uses that input to guide its reasoning and decisionmaking process
  • Skidmore deference: agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness"; its "fit with prior interpretations"; etc.
  • Beth Israel deference: pre-Chevron test permitting reasonable interpretations that are consistent with the statute
  • Chevron deference: reasonable agency interpretations of ambiguous statutes accepted. If the statute is clear, no deference to agency
  • Curtiss-Wright: super-strong deference to executive interpretations involving foreign affairs and national security

See also

External links

Footnotes

  1. ↑ Supreme Court of the United States, "Loper Bright Enterprises v. Raimondo, "June 28, 2024
  2. ↑ Yale Journal on Regulation, "Some Thoughts on Skidmore Weight After Loper Bright," November 22, 2024
  3. ↑ 3.0 3.1 The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," January 1, 2008
  4. ↑ Legal Information Institute, "CHRISTENSEN V. HARRIS COUNTY (98-1167) 529 U.S. 576 (2000) 158 F.3d 241, affirmed." accessed September 13, 2017
  5. ↑ JUSTIA, "Skidmore v. Swift & Co.," accessed September 12, 2017
  6. ↑ 6.0 6.1 6.2 6.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  7. ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
  8. ↑ Notre Dame Law Review, "HIERARCHICALLY VARIABLE DEFERENCE TO AGENCY INTERPRETATIONS," accessed September 12, 2017
  9. ↑ Legal Information Institute, "UNITED STATES v. MEAD CORP.," accessed May 18, 2018
  10. ↑ 10.0 10.1 Law and Liberty, "Against Skidmore Deference," January 5, 2018
  11. ↑ 11.0 11.1 FindLaw, "UNITED STATES v. MEAD CORP.," accessed August 21, 2018
  12. ↑ 12.0 12.1 12.2 Reason, “Should Courts Defer to Agency Litigating Positions?” June 28, 2018
  13. ↑ Reason, “Skidmore Deference for Agency Amicus Briefs?” June 28, 2018
  14. ↑ The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," 2008
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