Respecting deference: conceptualizing Skidmore within the architecture of Chevron.

• Author: Rossi, Jim

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S. Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, Christensen narrows application of the predominant approach to deference articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in many appeals involving administrative agency interpretations of law. This Article addresses the deference debate in this context, criticizing Christensen, especially Justice Thomas's majority opinion. This Article argues that the majority did not correctly apply Skidmore, and that the Court's decision invites ad hocery by lower courts in their review of agency legal interpretations. It concludes that conceptualizing Skidmore within the architecture of Chevron's step two--rather than as an alternative to the application of Chevron--will best promote goals of accountability, uniformity, and flexibility.

INTRODUCTION

Since it was decided in 1984, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.(1)--a case commonly associated with strong deference to agency interpretations of law--has taken on canonical status as the "counter-Marbury" for the administrative state.(2) At the same time, the administrative law canon has not completely ignored that it is "the province and duty of the judicial department to say what the law is."(3) Particularly where courts review the legal interpretations of administrative agencies, the scope of the judiciary's province and duty remains a complex issue, puzzling courts and commentators alike. It is also a source of fragmentation on the Supreme Court, dividing its members in a variety of different regulatory contexts.(4)

Given the complexity and divisiveness surrounding judicial review of agency legal interpretations, it is rare when the Supreme Court speaks about the issue with near unanimity. In Christensen v. Harris County,(5) eight justices agree that interpretive rules and statements of policy issued by the acting administrator of the Wage and Hour Division of the U.S. Department of Labor are not entitled to Chevron deference. Instead, these informal agency statements--by which Congress presumably did not intend an agency to speak with the "force of law"(6)--are to be afforded only "respect" under the Skidmore doctrine.(7) Justice Scalia, himself no stranger to administrative law issues, is the sole member of the Court to depart from this rule.(8) On its face, Christensen hints toward a large degree of certainty regarding the scope of strong deference to agency interpretations of law.

Beneath the surface, however, the justices in Christensen divide on what, exactly, courts should use in place of Chevron. Skidmore is commonly understood to be "weak deference"(9)--an approach to statutory interpretation that dates back to the 1940s--but none of the Christensen opinions explains how Skidmore deference is to apply to statements such as that before the Court; in fact, the opinions in Christensen take three distinct approaches to applying Skidmore to the agency's interpretation.(10) Thus, while the case purportedly resolves one doctrinal debate--that Skidmore, not Chevron, deference will apply to agency interpretive statements(11)--it raises another: Exactly what is Skidmore "deference"?

With Christensen, Skidmore is emerging--some might say reemerging(12)--as an administrative law mainstay. Agencies publish far more statements in the form of opinion letters, guidelines and policy memoranda, now presumably subject to Skidmore deference, than statements through adjudication or notice-and-comment rulemaking, subject to Chevron deference. Thus, Skidmore will potentially apply to judicial review of agency interpretations of law in more instances than Chevron. Yet historically courts and scholars have paid scant attention to what Skidmore deference means. Few law review articles address the topic.(13) And, although Skidmore has been around nearly forty years longer than Chevron, it is cited by courts less than twenty percent as often.(14) This Article argues, that by leaving Skidmore for ad hoc application by lower courts, the Christensen decision has introduced even more confusion into the maze of cases regarding judicial review of agency interpretations of law.

Part I of this Article discusses the two predominant doctrinal approaches to judicial review of agency statutory interpretations--Chevron and Skidmore deference--within the framework of the Christensen case. In favoring Skidmore "weak deference" over Chevron step-two "strong deference," the Court resolved a debate that has ensnared administrative law scholars for several years. Although Christensen does not resolve every question regarding the scope of Chevron deference, it clarifies that Skidmore "deference" applies to many more agency statements that courts will review, increasing the judiciary's scrutiny of legal interpretations rendered in agency interpretive and policy statements, including opinion letters.(15)

As Part I argues, however, the applications of Skidmore in the various Christensen opinions are hardly likely to create certainty in application of this rule. The majority and two dissenting opinions in Christensen take no fewer than three distinct approaches to applying Skidmore "deference." The majority opinion, written by Justice Thomas, does not afford any deference to the agency interpretation. Instead, it places the burden of persuasion on the agency without applying any of the factors mentioned in the Skidmore case.(16) Justice Stevens's dissent, by contrast, relies on the Skidmore factors, designed primarily to assess comparative institutional competence to evaluate the persuasive force of the agency's legal interpretation without eviscerating the presumption of validity that historically attaches to agency action.(17) Still another approach is implicit in Justice Breyer's dissent.(18) Like Justice Stevens, Justice Breyer relies on some application of Skidmore's institutional factors to uphold the agency interpretation; however, his dissent also implicitly endorses a reinterpretation of Skidmore within the framework of Chevron's deference analysis. These three divergent approaches create uncertainty regarding the application of Skidmore, posing confusion to lower courts as they begin applying Skidmore deference to agency interpretive and policy statements.

In Part II, this Article takes the occasion of Christensen as a springboard for assessing Skidmore and its contrast to Chevron deference. Justice Scalia asserts in his concurrence that the majority's reliance on Skidmore is an anachronism, "dating from an era in which we declined to give agency interpretations ... authoritative effect.(19) This Article does not agree with Justice Scalia's position, but Part II takes up the challenge his position poses, with the objective of shedding light on Skidmore deference. Three alternative possibilities, paralleling the approaches in Christensen, are discussed: (1) that Skidmore deference or respect only applies if a court, after rendering its own interpretation, agrees with the agency's interpretation; (2) that Skidmore always advises respect or deference, but evaluates the "persuasive power" of the agency's position based on institutional factors; or (3) that Skidmore operates under the shadow of a Chevron analysis. Part II argues that approach (1), applied by the majority in Christensen, is not supported by the case law or normative rationales for Skidmore deference. Approaches (2) and (3) have much to commend; while approach (2) is more consistent with existing case law, this Article argues that approach (3), implicit in Justice Breyer's dissent, is normatively preferable. This Chevron/Skidmore synthesis holds promise to bridge the gap between the majority and Justices Scalia and Breyer. Under this approach, Skidmore is read within the architecture of Chevron deference, not as an alternative to Chevron deference. In other words, Skidmore deference might be understood as a type of heightened hard-look inquiry--reasonableness with a bite--at Chevron's step two. The level of deference should not hinge on whether an agency interpretation speaks with the "force of law" (based on a hopelessly indeterminate analysis of congressional intent); rather, where Congress has not expressly withheld an agency's lawmaking powers, courts should focus on what level of scrutiny applies at the Chevron step-two reasonableness inquiry (based on the transparency of the procedure used by the agency). The synthetic approach promotes uniformity, flexibility, and legitimacy over alternative conceptions of Skidmore.

1. CHRISTENSEN AND THE (RE-?)EMERGENCE OF SKIDMORE DEFERENCE

   The Chevron case, often seen as a very pro-agency approach to judicial review, has attracted the attention of administrative law scholars since it was decided in 1984. Chevron stands at the center of several major recent decisions by the Court;(20) in the coming term it remains an issue in other cases that the Court is considering.(21) In the 1999 term, however, the Court signaled a clear retreat away from application of the Chevron test, most notably in Christensen, a case that thrust Skidmore into a position that will eclipse Chevron for many judicial appeals involving agency legal interpretations.

   1. The Rise of Chevron Deference

      Chevron, a unanimous opinion penned by Justice Stevens, articulates what has become the predominant judicial paradigm for review of agency interpretations of statutes and regulations. In Chevron, the Supreme Court upheld the Environmental Protection Agency's (EPA's)...