Skidmore deference

Skidmore deference is a principle of judicial review that gives federal courts flexibility in deferring to a federal agency’s interpretation of a statute that the agency administers. Unlike the stronger Chevron deference, Skidmore allows courts to determine the appropriate level of deference based on the agency’s ability to demonstrate persuasive reasoning in each case.

The principle of Skidmore deference emerged from the 1944 U.S. Supreme Court case Skidmore v. Swift & Co. and was further developed in the 2000 case Christensen v. Harris County. It is an important doctrine in administrative law that balances judicial oversight with respect for agency expertise.

Background

Federal agencies often issue policy guidance and interpretations of statutes in documents like opinion letters rather than through formal notice-and-comment rulemaking. As clarified in the 2001 Supreme Court case United States v. Mead Corporation, Chevron deference only applies to agency regulations developed through the rulemaking process.

For more informal agency statutory interpretations, Skidmore deference allows courts to determine the appropriate deference based on the thoroughness and validity of the agency’s reasoning. Skidmore provides a flexible approach compared to the binding deference of Chevron.

Theory and Practice

Some legal scholars have questioned whether judicial deference to agency statutory interpretations is necessary or appropriate at all. Professor Mike Rappaport has argued that agency expertise can be evaluated on a case-by-case basis without deference frameworks like Skidmore favoring government agencies over private parties.

Others contend that Skidmore deference introduces uncertainty and litigation by creating a vague sliding scale of deference without clear bounds. Justice Antonin Scalia strongly criticized Skidmore in his Mead dissent for “an empty truism” about considering agency views.

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Noteworthy Events

In 2018, the Supreme Court declined to hear the case Dupont v. Smiley, which questioned whether agencies deserve Skidmore deference for litigation positions not adopted through rulemaking.

Justice Neil Gorsuch joined Justice Clarence Thomas in an opinion suggesting review of Skidmore was warranted, raising questions about notice to regulated parties and incentivizing agencies to “regulate by amicus brief.”

Other Types of Deference

Skidmore exists on a spectrum of deference regimes cited in agency cases:

  • No deference: ad hoc judicial reasoning
  • Anti-deference: rule of lenity in criminal cases
  • Consultative deference: relies on agency input to guide reasoning
  • Beth Israel deference: allows reasonable agency interpretations
  • Chevron deference: requires deference to reasonable interpretations
  • Auer deference: strong deference to agency regulatory interpretations
  • Curtiss-Wright deference: for foreign affairs and national security

Conclusion

In the complex world of administrative law, Skidmore deference plays an important role in allowing courts to balance meaningful oversight of federal agencies with respect for agency expertise. However, questions remain about its application, necessitating ongoing clarification and debate.

FAQs

What is Skidmore deference?

Skidmore deference is a principle of judicial review that gives federal courts discretion to defer to a federal agency’s interpretation of a statute based on the persuasiveness of the agency’s reasoning. It allows for a flexible, case-by-case approach.

How does it differ from Chevron deference?

Unlike Chevron deference, which requires courts to defer to an agency’s reasonable interpretation, Skidmore deference does not bind courts. Courts have more discretion to independently review agency statutory interpretations under Skidmore.

What are some criticisms of Skidmore deference?

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Critics argue Skidmore deference is unnecessary, gives improper favoritism to government agencies, and creates uncertainty by making deference a vague sliding scale without clear standards.

When was Skidmore deference established?

The principle originates from the 1944 Supreme Court case Skidmore v. Swift & Co. It was further developed in the 2000 case Christensen v. Harris County.

What are some other types of judicial deference to agencies?

Beyond Skidmore and Chevron, additional deference regimes include no deference, anti-deference, consultative deference, Beth Israel deference, Auer deference, and Curtiss-Wright deference. The type applied depends on the agency action and context.

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