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Skidmore deference, in the context ofadministrative 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 asChevron 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 theU.S. Supreme Court in the 1944 caseSkidmore v. Swift & Co. and reaffirmed in the 2000 caseChristensen v. Harris County, which indicatedSkidmore should apply to agency interpretations of nonbinding agency actions, such asguidance, policy statements, or enforcement guidelines.

The Supreme Court ruled in 2024 inLoper Bright Enterprises v. Raimondo to overturnChevron 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 asSkidmore andAuer deference–into a period of uncertainty. JusticeElena Kagan in her dissenting opinion inLoper Bright argued, "the majority makes clear that what is usually calledSkidmore 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 theYale Journal on Regulation Notice and Comment blog argued the use ofSkidmore followingLoper Bright could also establish inconsistent precedent. Writing about the use ofSkidmore deference in a September 2024United States Court of Appeals for the Ninth Circuit panel decision, Walker argued, "The fundamental holding inLoper Bright was clear: Courts must independently interpret statutes and should no longer defer to agencies’ interpretations of them. The Panel decision here ... revivesChevron under a different name. In the guise of givingSkidmore '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 2000U.S. Supreme Court caseChristensen v. Harris County and named for the 1944U.S. Supreme Court decision inSkidmore 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 JusticeClarence Thomas' opinion inChristensen v. Harris County,Chevron deference is binding for agency rules developed through administrativerulemaking whileSkidmore deference is applied toagency 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 ofguidance documents, which are not required to be developed through therulemaking process.^[3][4]

JusticeRobert H. Jackson's opinion inSkidmore v. Swift & Co. states:^[3]

UnlikeChevron deference, a federal court exercisingSkidmore 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]

TheU.S. Supreme Court reaffirmedSkidmore deference in the 2001 caseUnited States v. Mead Corporation. The court held thatChevron deference applies to agency regulations and adjudicatory actions while other agency actions, such as interpretations, guidance, or policy statements, are relegated to consideration underSkidmore 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 forLaw and Liberty thatSkidmore deference is unnecessary since an agency's expertise can be evaluated in each case through its opinions and briefs. In addition, Rappaport claimed thatSkidmore deference demonstrates bias in favor of government agencies since private parties may also possess expertise that is not entitled to similar deference:^[10]

Vague bounds ofSkidmore deference

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

Noteworthy events

U.S. Supreme Court declines to reviewSkidmore deference inDupont v. Smiley (2018)

TheUnited States Supreme Court declined to grant certiorari inDuPont v. Smiley on June 28, 2018. The case questioned whether or notexecutive agencies are entitled to receiveSkidmore deference when a court reviews an agency interpretation arrived at through litigation rather than adopted through therulemaking process. These types of agency interpretations are not entitled toChevron deference until they are adopted through therulemaking process at a later time.^[12][13]

JusticeNeil Gorsuch was joined by JusticeClarence Thomas in an opinion regarding the Supreme Court’s refusal to examineSkidmore deference inDupont v. Smiley:^[12]

Other types of deference

See also:Deference in the context of the administrative state

Below is a list of variousdeference 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

• Seminole Rock deference (also known as Auer deference): strong deference afforded to an agency's interpretations of its own regulations

• Curtiss-Wright: super-strong deference to executive interpretations involving foreign affairs and national security

See also

• Deference (administrative state)
• Chevron deference
• Auer deference
• Rulemaking
• Taxonomy of arguments about judicial deference
• List of court cases relevant to judicial deference to administrative agencies
• List of legislation relevant to judicial deference to administrative agencies
• List of executive orders relevant to judicial deference to administrative agencies
• List of scholarly work pertaining to judicial deference to administrative agencies

External links

• Federal Register homepage
• Search Google News for this topic

Footnotes