Accountability, deference, and the Skidmore doctrine.

• Author: Lipton, Bradley

NOTE CONTENTS INTRODUCTION 1. ACCOUNTABILITY AND INFORMAL AGENCY ACTION A. What Accountability Means B. A New Consensus on Accountability C. Informal Political Accountability D. Political Accountability and Formal Procedures E. Related Scholarship II. WHY, WHEN, AND HOW MUCH DEFERENCE A. Justifications for Deference B. Domains of Deference: Chevron vs. Skidmore C. How Much Is Skidmore Deference? D. Rationales for Chevron and Skidmore III. SKIDMORE DEFERENCE IN ACTION A. Current Circuit Court Practice B. The Persuasive Precedent Model C. Current Supreme Court Practice CONCLUSION INTRODUCTION

But the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case.... The fact that the Administrator's policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect.

--Skidmore v. Swift & Co. (1)

With the landmark decision United States v. Mead Corp., (2) the Supreme Court breathed new life into the administrative law classic Skidmore v. Swift & Co. In Mead, the Court ruled that there are essentially two types of statutory interpretation by government agencies. (3) The first category, formal interpretations, occurs in notice-and-comment rulemaking and formal adjudicatory proceedings when Congress has clearly delegated lawmaking authority to the agency. The second category, informal interpretations, governs a wide swath of administrative rulings, ranging from advisory opinions to ruling letters to interpretative guidance. The Mead court held that courts should defer strongly to formal interpretations under the very deferential standard set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (4) but should be less deferential to informal interpretations by using the standard articulated in Skidmore.

Chevron is by far the most cited Supreme Court case of the last twenty-five years and has been the subject of hundreds of law review articles. (5) Despite its older pedigree, Skidmore--Chevron's "little brother"--has by contrast gone understudied. (6) As a result, courts and scholars have not come to a consistent understanding of its doctrine. This lapse is quite significant, since Skidmore governs the vast majority of interpretative decisions in the modern administrative state. (7)

This Note argues that government agencies should receive substantial deference when they interpret statutes informally. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. Current legal scholarship, however, reflects an outdated view of accountability that does not reflect more recent insights from political science. While political scientists previously worried that government bureaucracies were not responsive to political forces, the current consensus holds that government agencies are, in fact, quite responsive to the public.

Contemporary legal scholars continue to focus on the extent to which government officials are accountable via formalistic procedures or alternatively through direct electoral ties to the populace. However, political scientists now emphasize that agency officials are actually held accountable through a multitude of other mechanisms. These mechanisms include extensive oversight from the elected branches, direct contact with constituents, and interaction with the media. Thus, as a practical matter, officials are held accountable in more varied ways than indicated by the current legal literature.

The doctrinal implication of this accountability is that courts should give meaningful deference to agencies' informal decisions. Courts implementing so-called "Skidmore deference" often state that agencies receive deference to the degree their arguments have the "power to persuade." (8) This Note argues that the legitimate decision of a politically accountable government actor is itself persuasive. As my epigraph suggests, this treatment is consistent with Justice Jackson's tone in Skidmore, which suggests substantial "respect" for agency decisions made "in pursuance of official duty." (9) On the other hand, while deference in the informal context should be substantial, it should still be less than the very strong deference accorded to formal interpretations. Skidmore deference should represent an intermediate level between strong deference and none at all.

Recent empirical work shows that courts operate inconsistently when implementing Skidmore. Some court decisions do give substantial deference under Skidmore, but others do not. These latter courts give agencies deference only to the degree that the agency demonstrates particular expertise in the substantive context in question. This Note argues that such cases were wrongly decided, given the modern understanding of agency accountability. Furthermore, I provide a novel justification for a set of cases previously unexplained by scholars. These cases are those in which courts have deferred to agencies without reference to contextual factors such as expertise. Such deference is justified by the political accountability of the agencies.

Courts' inconsistent treatment of the Skidmore standard suggests they would benefit from a coherent model for the treatment of informal agency interpretations. This Note offers such a model. The model is familiar: courts can analogize agency statutory interpretation to "persuasive precedent," the nonbinding decisions of other circuits. Since Skidmore deference is based on the "power to persuade," looking to persuasive precedent is a natural fit. More than just linguistic wordplay, however, the persuasive precedent model makes sense for Skidmore deference. When one court cites the decision of another, it does so to indicate that another legitimate government body has made a decision worthy of respect. The political accountability of government agencies justifies giving them similar respect.

Finally, this model of deference is consistent with recent Supreme Court precedent. The Court has repeatedly cited political accountability as a foundational rationale for deferring to government agencies in all contexts. Furthermore, in recent decisions, the Court has given agencies substantial deference in the informal Skidmore context. However, like the circuit courts, the Supreme Court has shown inconsistency when invoking Skidmore. In particular, the Court has purported to give Skidmore deference in some situations in which it gave no deference at all. While justified in giving no deference in these cases, these decisions should not, I argue, have cited Skidmore, which represents an intermediate level between strong Chevron deference and no deference at all.

Part I of this Note makes the argument for giving deference to informal agency decisions on the basis of political accountability. Part II then frames this line of reasoning within an overview of the judicial doctrine of deference to agency interpretations of statutes. Part III applies the argument for substantial Skidmore deference to the actual practice of courts reviewing agency decisions. The Note concludes with a summary of its argument: because agencies are politically accountable when acting informally, courts should give substantial deference to informal interpretations of statutes.

1. ACCOUNTABILITY AND INFORMAL AGENCY ACTION

   Informal agency decisions deserve substantial deference from courts because agency officials are politically accountable even when acting informally. Modern political science reveals that politics impacts government agencies generally. Informal agency decisions are not made by Kafkaesque bureaucrats tucked away in some distant customs office, and political accountability is not cabined exclusively within notice-and-comment rulemaking. Rather, those affected by agency decisions put pressure on agencies--either directly or indirectly through sympathetic political actors in the White House or on Capitol Hill.

   Agency policies, to borrow the phrase from Skidmore, "are made in pursuance of official duty," (10) and are therefore subject to significant oversight by political officials in both the executive and legislative branches. Furthermore, beyond such oversight, the public itself frequently interacts directly, both formally and informally, with agencies. This direct interaction provides an additional layer of oversight and accountability to agency decisions. Since the agency bureaucrat knows his decision is ultimately reviewable by political actors, he has an incentive to listen to the public before, during, and after making decisions.

   1. What Accountability Means

      Political accountability is clearly an important foundational principle in a democracy and is a key source of legitimacy for government action. That being said, the notion is notoriously slippery. (11) My argument uses accountability as Justice Stevens did in Chevron, namely as responsibility to balance the competing political forces at work in society. (12) The Chevron opinion thus repeatedly mentions "a reasonable accommodation of manifestly competing interests," "reconcil[ing] competing political interests," and "resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency." (13)

      When legal scholars refer to political accountability, however, they typically do so in a relatively narrow sense. These authors rely on a view of political accountability focusing on ties to the elected branches of government--what political scientist David Mayhew famously deemed "the electoral connection." (14) The traditional understanding of accountability within the legal literature is thus the "transmission belt" model, in which accountability flows from the elected representatives to those appointed--and able to be fired--by them. (15) This unduly cramped conception of...