Christensen is an important administrative law case because it purports to clarify the application of the deference doctrine first articulated in Skidmore v. By reviving this doctrine, Christensen narrows the application of the prevailing approach to deference expressed in Chevron U.S.A. Instead, these informal statements by the agency - by which Congress presumably did not intend the agency to speak with "legal force" 5 - should be accorded only "deference" under the Skidmore doctrine.' Justice Scalia, himself no stranger to administrative law issues, is the only member of the Court to depart from this rule.8 At first glance, Christensen suggests a large degree.
The justices agreed that Chevron filed, but disagreed on their assessment of the context of Congress's delegation of authority to the Food and Drug Administration to regulate cigarettes under the Food, Drug, and Cosmetic Act . Three alternative possibilities are discussed, paralleling Christensen's approaches: (1) that Skidmore deference applies only if a court, after providing its own interpretation, agrees with the agency's interpretation; (2) that Skidmore always advises respect or reverence, but evaluates the other person's 'power of persuasion'.
CHRISTENSEN AND THE (RE-?)EMERGENCE OF
The Rise of Chevron Deference
Madison that "it is the province and duty of the Department of Justice to say what the law is"3' is thus set against the background of an inquiry into the reasonableness of the agency's legal interpretation in the second step. Deference to agency expertise, the limits of judges' specialized knowledge, and political accountability are the normative core of Justice Stevens' rationale for agency deference in Chevron. Perhaps this body consciously wanted the administrator to strike a balance at this level, believing that those with great expertise and responsibility for administering the provision would be in a better position to do so; perhaps he simply did not address the issue at that level; and perhaps Congress could not form a coalition on either side of the question and those on each side decided to take their chances with the scheme devised by the agency.33.
Circuit respect for EPA interpretations increased after Chevron.3 9 Setting the tone for application of standards of review for lower courts, the Supreme Court's decisions re. Strauss, One Hundred Fifty Cases a Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM.
Retreat From Chevron
Nevertheless, it is a matter of deference, as Justice Jackson acknowledged when he outlined the normative reasons for the Court's approach. set aside, except for very good reasons, if the scope of the order is indefinite and doubtful.”). Anthony, What Agency Interpretations Should Bind Citizens and Courts?, 7 YALE J. The provision of the statute at issue states:.
As a way to address this concern, Harris County, Texas proposed to schedule employees to use or take compensatory time, thereby reducing the levels of accrued compensatory time." Harris County wrote to the US Court of Appeals for the Fifth Circuit , upholding Harris County policy despite conflicting federal agency interpretation of the statute.73 The significance of the Christensen case is in the Court's approach to weighing the agency's statutory interpretation. Since every judge agrees that the statutory language at issue in Christensen was silent or unclear with respect to the legality of the Harris County policy,74 Chevron would advise deference to the agency's reasonable statutory interpretation.
In contrast, Skidmore would afford deference, depending on the "persuasive force" of the agency's position.7' The majority opts for Skidmore's deference to the agency's interpretive and policy statements.76 Overall, eight justices (with Justice Scalia, dissenting alone in the case) agree that Skidmore deference applies to an agency's statutory interpretation in an opinion letter. Interpretive rules and implementing guidelines are not entitled to the same deference as norms arising from the exercise of the Secretary's delegated lawmaking powers.'" (citation omitted)). of the agency's delegated powers, not merely as a function of silence. or ambiguity in a statute".
Third, although not mentioned in any of the Christensen opinions, separation of powers principles may have influenced the Court's decision. With the sole exception of Justice Scalia, all members of the Court agree that deference to Skidmore should apply to the opinion in Christensen.1 Justice Scalia agrees with the majority's conclusion regarding the legality of the Harris County policy, but he declines to apply Skidmore to the case for several reasons. However, in exercising such discretion, the reviewing court must consider the particular resources the agency brings to the task."
As Professor Russell Weaver has argued, Chevron does not give all agency interpretations the “force of law.” The majority opinion in Christensen fails to fully understand the distinction. Nevertheless, because Justice Scalia does not find the Secretary of State's interpretation of the statute at issue in Christensen to be reasonable, he agrees with the majority's conclusion on the legality of Harris County's policy.9 9.
The Emergence of Ad Hoc Skidmore Deference
- The Majority's Application of Slddmore
- Justice Stevens's Dissent and Skidmore
- Skidmore in Justice Breyer's Dissent
- TOWARD A CHEVRON/SKIDMORE SYNTHESIS
Thus, Justice Scalia reasoned, even if Chevron deference applies to an agency's statutory interpretation, it does not mean that the agency's interpretation will be upheld. Before addressing the weight afforded the agency's interpretation, the majority states: "[w]e find this reading unpersuasive."' The majority argues that the canon expressio unius does not resolve this case in favor of the petitioners. In doing so, the court determines whether it is convinced that the agency's interpretation is “better without giving the agency's interpretation any presumption of validity.
Only after determining which reading of the statute it deems best does the majority decide what degree of deference to accord the agency's interpretation. In his dissent, Justice Stevens agrees with the agency's interpretation.” Like the majority, he does not begin his evaluation of the statute by referring to the degree of deference to the agency's interpretation. like the majority on the Skidmore factors designed to assess the relative decision-making ability of an agency compared to a reviewing court.
However, if Chevron deference applies, Justice Breyer would conclude that the agency's interpretation of the statute is reasonable—the opposite result of Justice Scalia."9 Third, Justice Breyer suggests that Skidmore deference is a type of Chevron step two reasonableness inquiry. The majority in Christensen emphasizes whether the agency interpretation was "better" or "more correct" than alternative explanations.' In assessing ``persuasiveness,'' however, the majority does not consider institutional factors associated with the agency's expertise, but instead provides its own independent interpretation of the statute. Rather, the majority seems to suggest that Skidmore ``respects,'' or deference, is triggered only in the scope of the agency interpretation.
The effect of this approach is that the burden of persuasion falls on the authority. Because the majority in Christensen does not view the agency's interpretation as persuasive, the interpretation is not entitled to any deference. Under the majority approach in Christensen , if the Court finds the agency's interpretation persuasive, it is entitled to Skidmore "respect."
Even under the approach of the Christensen majority, this presumably does not mean that the agency interpretation will always be upheld. Instead, once the Court begins to apply deference, the agency's interpretation will be given the degree of deference it warrants under the Skidmore factors.
Sliding Scale Deference Based on Application
This approach differs from that of the Christensen majority, which does not apply Skidmore deference unless an agency interpretation is deemed persuasive. Aramco and Gilbert's approach is more consistent with the language of the Skidmore opinion, as well as the normative justifications for deference. If courts follow the Christensen majority's Skidmore approach, they risk removing the presumption of validity for agency actions outside of notice-and-.
Although Justice Breyer's dissent is not inconsistent with the second approach to Skidmore deference-like Justice Stevens, he explicitly applies the Skidmore factors to assess the "persuasiveness" of the agency's interpretation161"—he also raises a third. Nevertheless, an agency's determination of documents or reasons, subject to judicial review, will increase the legitimacy of the agency's decision Skidmore's factors regarding the agency's expertise and thoroughness of deliberation strongly parallel the considerations of the hard-look test in step two of Chevron.
Reliance interests are protected because regulated entities have some confidence in the security of the agency's position. Another purpose of the consistency requirement is that agencies can be prevented from bypassing the notice and comment rulemaking processes when they adopt a new interpretation, enhancing the legitimacy of the regulatory process. Professor Asimow argues, for example, that the Skidmore factors, as applied by California state courts, serve two purposes: judicial recognition of the agency's institutional comparative advantage and invoking deference where the agency's interpretation is possibly correct.
Consistency and concurrent factors are particularly useful in evaluating the correctness of an agency's interpretation. State Board of Equalization, 960 P.2d Cal. 1998), which considered Skidmore's interpretation taken outside the rule-making and adjudication processes. Skidmore permits this, but courts must take the thoroughness factor seriously when evaluating the reasonableness of an agency's decision.
Conceptualizing Skidmore as reasonableness with a bite will increase the accountability and deliberativeness of agency interpretations in informal contexts. A more precedential approach relies on institutional factors to measure the persuasiveness of the agency's explanation.
Sddmore as Reasonableness With a Bite
