More on Skidmore (10/19/17)

I recently posted on Skidmore deference:  Other Views of Skidmore "Deference" (10/12/17; 10/15/17), here.  I offer more here on Skidmore, having searched through my database I keep to catalog items that I either actually read or wished I had read.  I just did a simple search on Skidmore.  I got about 525 hits indicating the sections in which Skidmore is cited (some sections had more than two references to Skidmore).  I browsed through the hits and offer the following additional excerpts about Skidmore deference.  I do caution readers than this is not a scientific or representative sampling of all the literature that is out there.

Kristin E. Hickman and Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1250, 1252-1253, 1255-1256, 1271, 1280-1281, 1291, 1310 (2007), here (footnotes omitted):

II. What Is Skidmore Deference? 

Drawing fine distinctions among deference standards may seem a purely academic exercise. Legal realists contend that such an effort is pointless, as courts only invoke deference standards to justify their preferred outcome. Although we acknowledge that this critique may be true in some instances, we nevertheless submit to the contrary that deference standards matter. We accept that courts feel constrained by deference standards and speak sincerely when they discuss the application of those standards. 

It is easy enough to recognize the consensus view that Skidmore gives judges more discretion than Chevron's command of mandatory deference. Similarly, from the Court's articulation of the two standards, one can readily discern that Chevron deference involves two binary inquiries, while Skidmore requires courts to evaluate several factors. Nevertheless, once a reviewing court finds itself in Skidmore's realm of discretionary deference, elucidating the appropriate degree of deference is not so simple as plotting a point on a line. Standards of review are not precision instruments. Rather, to paraphrase Justice Frankfurter, standards of review are more accurately described in terms of the "mood" a reviewing court should possess in evaluating the issue at bar. The question to be answered, therefore, is what sort of mood Skidmore analysis contemplates. 

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Commentators also generally agree that Skidmore is less deferential than Chevron, falling somewhere further away from the deference pole. This is all well and good, but it offers little guidance for the application of Skidmore as a stand-alone doctrine. 

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The independent judgment model of Skidmore deference thus understands the "persuasiveness" of an administrative interpretation to depend ultimately on the interpretation's merits or rightness. This conception discounts Skidmore's contextual factors and does not require courts to regard the presence or absence of those factors as particularly relevant. At most, this view understands Skidmore to require "due regard" be given to the agency's view, while "instructing courts to adopt the statutory interpretations that they themselves deem best." In effect, then, Skidmore directs courts to treat the agency's view just as it would the view of any litigant.  

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Skidmore demonstrates how the independent judgment approach does not ask a court to assess the proper weight to give the agency's interpretation on the basis of contextual factors; instead, this approach permits a court to enforce its preferred interpretation.  

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3.  Skidmore's Review as Deference Varying Along a Sliding Scale. 

A competing conception characterizes Skidmore as prescribing deference along a continuum or sliding scale, with the degree of deference varying according to the reviewing court's evaluation of Skidmore's contextual factors. Most closely associated with Kenneth Culp Davis and Thomas Merrill, this view of Skidmore represents a type of "deference" because a court is not free to ignore the administrative interpretation or to reject it solely because it differs from the court's preferred interpretation. Instead, Skidmore review intrudes upon courts' judgment by requiring courts to apply multiple factors to the agency's interpretation to decide how much weight to assign to the interpretation. In effect, under this model, Skidmore prescribes a method by which a reviewing court should determine how much deference to give an agency's interpretation but does not mandate the outcome of that determination. 

The sliding-scale model of Skidmore counsels special consideration of agency interpretations that courts do not necessarily afford to the views of other litigants. Skidmore justified giving agency interpretations such "weight" on two grounds. First, agencies typically hold specialized expertise and experience related to their respective regulatory schemes. In light of this reality, Skidmore directs courts to assess to what extent the interpretation reflects an exercise of the agency's potentially superior interpretive competency. Second, courts can promote uniformity of the law and thereby promote the public good by harmonizing judicial interpretations with administrative interpretations.  

Even if one assumes that the sliding-scale model of Skidmore is the correct one, it is not altogether clear exactly how the sliding scale operates. The Court has not offered firm rules, either in Skidmore or elsewhere, for how courts should calibrate their level of deference along the sliding scale. For example, the Court's conclusion in Alaska Department of Environmental Conservation that the agency's interpretation was "reasonable" and not "impermissible" prompted Justice Kennedy to accuse the majority of applying Chevron-style analysis under the Skidmore label. Justice Kennedy's accusation raises this question: Does Skidmore deference allow a court to defer to an interpretation that it considers merely reasonable but not the only or even best option, given the presence of other contextual factors? 

Moreover, the Court has not precisely delineated which contextual factors the courts should evaluate in applying the sliding scale. Neither Skidmore nor Mead purports to provide a conclusive list of factors. Both invite courts to consider any fact speaking to an interpretation's persuasiveness. And neither Skidmore nor Mead explain how these factors relate to each other or whether certain factors are more important than others.  

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Our analysis of Skidmore applications in the federal courts of appeals supports these conclusions: First, the sliding-scale model of Skidmore deference dominates the independent judgment model among the federal circuit courts of appeals. Second, Skidmore deference, while less deferential than Chevron, is nevertheless highly deferential to administrative interpretations as applied. 

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In summary, careful analysis of 106 identified Skidmore applications in the federal courts of appeals demonstrates that, in a strong majority of cases, the Skidmore doctrine represents a bona fide standard of review, rather than merely an excuse for reviewing courts to follow their own interpretive preferences. Additionally, the evidence shows that Skidmore review is highly deferential - less so than Chevron, but still weighted heavily in favor of government agencies over their challengers. Finally, as with Chevron, the courts generally apply Skidmore deference only in the face of statutory ambiguity. 

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C. Skidmore's Sliding Scale in Practice 

Once one accepts that the courts of appeals overwhelmingly approach Skidmore in the mode of a sliding scale, evaluating the functionality of that model takes on added significance. In fact, the overarching impression that one receives from the Skidmore cases is a lack of uniformity in how courts apply the sliding-scale conception of Skidmore. 

At one level, the ad hoc quality of the Skidmore applications is compelled by Skidmore's instruction that courts consider "all those factors which give [the agency's interpretation] power to persuade." Hence Justice Scalia's mocking description in his Mead dissent of Skidmore review as "th'ol' 'totality of the circumstances' test." However, the varying ways in which courts apply Skidmore's factors arguably run deeper than the variety to be found in the typical totality of the circumstances test. The cases reveal disparate approaches to which factors should be applied first, how the factors relate to each other, and what each factor means. To describe in more detail how courts apply the sliding-scale conception of Skidmore, the following subsections address the individual factors, noting particularly where relevant (1) the courts' varying understandings of the factor, (2) the factor's relationship to other factors, and (3) the weight courts appear to assign to the factor. 

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7. Summary. -  

The appellate courts seem to believe that Skidmore review represents something more than mere totality of the circumstances evaluation. Yet the courts are uncertain as to precisely what that something is. In the end, the overlapping definitions of the various factors may make little difference to the outcome in most cases. Put another way, one might argue, for example, that it matters little whether the courts label their evaluation of the process by which an agency adopted its interpretation as thoroughness or formality, so long as they are considering the implications of that process for deference purposes. Yet the confusion over the inquiry each factor represents in turn feeds the uncertainty over how the Skidmore standard should function. What the courts seem to be searching for, and what seems to be lacking in many cases, is an underlying guiding principle that links the various factors and explains why one informal, nonbinding agency action is superior to another. 

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Yet within the realm of cases applying the sliding-scale conception of Skidmore, consistency and coherence is lacking. Courts blur distinctions between factors and often appear uncertain of the rationale underlying the various factors. Amidst the confusion, however, certain cases provide promising examples of more coherent ways to apply Skidmore's factors. Recognizing agency expertise and the avoidance of arbitrariness as the guiding principles behind Skidmore's multifactor review should help in stabilizing the courts' approach to the different factors. And reconceptualizing Skidmore as prescribing a choice of three distinct zones of deference should simplify its application.

Steve R. Johnson, The Rise and Fall of Chevron in tax: From the Early Days to King and Beyond, 2015 Pepp. L. Rev. 19, 22-23 (2015), here, (most footnotes omitted):

Agency interpretations not satisfying Mead are evaluated under the Skidmore "standard," which is neither a standard nor deferential. n28 Unsurprisingly, therefore, Skidmore "has produced a spectrum of judicial responses, from great respect at one end . . . to near indifference at the other."
   n28 According to Skidmore, "[t]he weight [accorded to the agency's position] will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id.
Ultimately, an undifferentiated "all factors" test is not a test at all. E.g., Oregon v. Kennedy, 456 U.S. 667, 675 n.5 (1982). And, upholding the agency only if the court agrees with "the validity of [the agency's] reasoning" can hardly be described as deference. Skidmore, 323 U.S. at 140. 

Michael A. Herz, Chevron is Dead; Long Live Chevron, 115 Colum. L. Rev. 1867, 1889-1891 (2015), here (most footnotes omitted):

With dismaying frequency, courts assert that the persuasiveness of the agency's reasoning is one of the factors affecting the weight to be given the agency's views under Skidmore. This proposition is either a truism or incoherent. Undeniably, a powerfully reasoned agency conclusion is more likely to be upheld than a poorly reasoned one. Courts reward "reasoned decisionmaking." However, to accept an interpretation because it is "persuasive" is not to defer (in either of its senses), but rather to agree. The various Skidmore factors (consistency, contemporaneousness, age) all add to the weight of the  agency interpretation, making it more "persuasive"; the interpretation's "persuasiveness" is not itself a Skidmore factor. 

The Supreme Court has done much to sow this confusion. For example, Mead identifies "the persuasiveness of the agency's position" as one of the Skidmore factors. But this is not what Skidmore actually says. On Justice Jackson's formulation, the Skidmore factors are the things that give the agency's interpretation "the power to persuade"; to say that the "persuasiveness" of the agency's position is one of the things that give it "the power to persuade" is tautological. 

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Similarly, in a problematic but much-quoted formulation, the Christensen majority opinion stated that agency interpretations are "'entitled to respect' . . . , but only to the extent that those interpretations have the 'power to persuade.'" This is self-contradictory. Everything, including the arguments of the lawyers in the case, is entitled to respect "to the extent [it has] the power to persuade." Under this approach, if the court agrees with the agency it will label the interpretation persuasive and "defer" to it, whereas if it disagrees, it will label the interpretation "unpersuasive" and ignore it. For example, consider this sentence from a court of appeal's opinion: "[T]he Director is not entitled to Skidmore respect . . . because his position . . . is simply unpersuasive, notwithstanding its inclusion in the agency's manual and the Director's consistent application of [this interpretation] for some time." This is not deference; the court is reaching an independent conclusion. On this approach, Skidmore means nothing more than "we will defer to the agency if we believe the agency is right." If that's what it means, it means nothing at all, and Skidmore deference is a fiction.
   n121 See Barron & Kagan, supra note 46, at 227 n.98 (wondering aloud whether "Skidmore deference amounts to something more than a court saying 'we will defer to the agency if we believe the agency is right'"); see also Panel, Agency Preemption: Speak Softly, but Carry a Big Stick?, 11 Chap. L. Rev. 363, 382 (2008) (comments of Ronald A. Cass) ("[T]hat's why the notion of Skidmore deference is a wonderful concept for courts, which means that they do what the agency says when they would've done it without the agency doing it anyway."). 

Aaron Saiger, Agencies' Obligation to Interpret the Statute, 69 Vand. L. Rev. 1231, 1282-1283 (2016), here (footnotes omitted):

But it is doubtful that Skidmore in fact involves deference in this sense. Mead settles only that the Court describes Skidmore review as "deference," not whether it is deference of this sort. Given that Skidmore says that agencies are due its deference only to the extent that the agency's views have the "power to persuade," some, Justice Scalia chief among them, would insist that it is not "deference" in the relevant way. But many judges and commentators understand Skidmore to involve, in some cases, a court agreeing with the agency without having been convinced. Professors Thomas Merrill and Kristin Hickman call it "an intermediate option" that "rescues courts from a stark choice between Chevron deference or no deference at all." Professor Eskridge and his collaborator call it "mildly deferential," "a judicial willingness to go along." Professor Strauss, who advocates the term "Skidmore weight," says that under Skidmore courts retain their independent judgment but give weight to agency opinions because they are often more informed, more uniform, more predictable, more experienced, and generally more savvy than courts' own. 

JAT Comment:  Oh well.