Comments on Highly Recommended Article Extending Skidmore "Deference" Approved in Loper Bright (3/7/26)

I have just read a great article: Mitchell Zaic, Note: The Skidmore Compromise: Interpreting Skidmore as a Tiebreaker to Preserve Judicial Wisdom in the Era of Loper Bright, 110 Minn. L. Rev. 1535 (2026), here, and post some thoughts on the article and on Skidmore (Skidmore v. Swift & Co., 323 US 134 (1944), here).

First, I acknowledge Mr. Zaic has published an exceptional work with substantial research and creative thought after Loper Bright Ent. v. Raimondo, 603 U.S. 369 (2024), SC here (Preliminary Print), which overruled so-called Chevron deference. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), GS here. Mr. Zaic says in the asterisk for his name: “Writing this piece has been one of the great privileges of my life.” He has also privileged readers of the article.

Mr. Zaic states his thesis in these two excerpts (pp. 1356 and 1569):

This interpretation of Skidmore would only be used dby interpreters when judges are faced with interpretive ties that have no other method of resolution. Only then can judges resort to applying the agency's interpretation. This method of interpreting Skidmore ensures that agency interpretations never overrule the best meaning of the statute, instead facilitating the judge in his or her interpretive quest. In addition, the tiebreaker continues the long tradition of respect for agency interpretations beyond that of the typical litigant.

* * * *

Where competing interpretations are at equipoise to an interpreter, courts should resolve conflicts in the agency's favor so long as the agency's reasoning is valid, thorough and its interpretation arises from experience and informed judgment.

Bottom line, Mr. Zaic argues that, in a state of statutory interpretive equipoise, a court needs—indeed, must—apply a default rule to decide the case. The default rule in a case where a regulated party opposes an agency interpretation, the court should default to the agency interpretation. Mr. Zaic gets to his conclusion through a process of reasoning.

My previous Chevron research indicates that Chevron worked in equipoise (without necessarily the qualifiers at the end of Mr. Zic's last sentence). Chevron was supposed to apply only where, after vigorous statutory interpretation (Chevron fn. 9), the statutory text was still ambiguous—in equipoise—where the court could not determine which of two or more interpretations within the zone of ambiguity was the best interpretation.

I analyzed two significant sets of Courts of Appeals cases identified by other scholars as being applications of Chevron.   Chevron Deference: Much Ado About Not Much (Federal Tax Procedure Blog 8/15/21), here; and Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here. My key conclusions were: 

• no court ever said it was applying Chevron to not-best agency interpretation rather than a best nonagency interpretation; stated otherwise, if a court really determined that a nonagency interpretation was best, there were too many outs to avoid applying Chevron (i.e., finding the best interpretation requiring the court to stop at Step One, or finding the agency interpretation unreasonable at Step Two, not to mention the Major Questions Doctrine or other outs).  Justice Roberts’ claim in Loper Bright that Chevron permitted a court to defer to an agency interpretation when an opposing interpretation was best was false. 
• in many supposed Chevron-reliant opinions, close analysis of the opinion indicated that the court thought the agency interpretation best (meaning, of course, it should have stopped futzing around at Chevron Step One rather than appearing to reach Step Two).

I like Mr. Zaic’s baseball exemplar (pp. 1576-1577) for the state of equipoise where, in baseball umpiring (arguably like judging) “the tie goes to the runner.” The exemplar I have used is factfinding where, if the judge or jury is unable to find the fact by a preponderance of the evidence, it resolves the fact against the party bearing the burden of persuasion. This simply illustrates that where the evidence is in equipoise, a tiebreaker is needed. Similarly, in statutory interpretation, when a regulated party attacks the agency interpretation, the court cannot hold for the regulated party unless it is persuaded that the regulated party’s interpretation is the best interpretation.

Indeed, perhaps the only fault I find in Mr. Zaic’s analysis is that he, like most others, overlooks the precise text of § 706(2)(A) that requires that the agency interpretation prevail in equipoise. Section 706(2)(A) permits a court to “hold unlawful and set aside agency action” (here statutory interpretation) only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” I set aside the arbitrary and capricious test because that is a test of procedural regularity (e.g., foot-fault in the notice and comment process) rather than a test of the validity of an interpretation. See Judulang v. Holder, 565 U.S. 42, 52 n. 7 (2011) (read it carefully). So the applicable test for interpretation is whether it is “not in accordance with law.” As worded, that only permits an opposing interpretation to permit the court to “hold unlawful and set aside agency action” when the court can affirmatively find the agency interpretation is "not in accordance with law." The court cannot make that affirmative finding if the text being interpreted is in equipoise as to the agency interpretation and the opposing interpretation.

Now, how do I reach that interpretation of the text in § 706(2)(A)?  Because the Supreme Court in Dobson v. Commissioner, 320 U.S. 489 (1943) so interpreted that precise statutory text—“not in accordance with law”—to  require deference when the statute is not “clear-cut” (meaning no best interpretation).  Indeed, based on my research, I am fairly certain (but cannot definitively prove) that the § 706(2)(A) “not in accordance with law” text was lifted verbatim from the statutory text interpreted in Dobson to achieve precisely what it says: the interpretation cannot be held unlawful and set aside unless the opponent shows affirmatively that it is “not in accordance with law.” I think most scholars and courts have not been aware of or have ignored, intentionally or uninstentially, that provenance for the text in § 706(2)(A).

As an aside, but tangentially relevant, in 1948, Congress statutorily required de novo review of Tax Court interpretations by mandating review the same as from district courts (thus changing the rule going forward but not overruling the Dobson interpretation of the text “not in accordance with law”). § 7482(a). 

The whole point of the above is that Mr. Zaic nails it with the need of a tiebreaker in ambiguity/equipoise in concluding that the agency interpretation apply. I suppose that the difference I have with Mr. Zaic on this bottom line conclusion is the reasoning for such a tiebreaker rule: the agency interpretation should be applied when the court cannot affirmatively determine that any other interpretation is best. See Justin Driver, The Insignificance of Judicial Opinions, 113 Cal. L. Rev. 2181 (2026) , here (on the subject of bottom line conclusions rather than reasoning in reaching the bottom line).

I have participated as an attendee in some Loper Bright webinars where I sent in the following question (or some variation): What does a court do when it is in statutory equipoise as to the best interpretation as between an agency interpretation and the opposing interpretation? No pundit has yet attempted to answer that question. Mr. Zaic answers that question from solid logic and the inevitable need for some tiebreaker in equipoise..

Mr. Zaic’s analysis functions similarly to Chevron deference—i.e., it forces application of the agency interpretation when the text is ambiguous (i.e., in equipoise as to its meaning). Mr. Zaic acknowledges this and explains why his formulation of the tiebreaker rule is different from Chevron deference. (See Article pp. 1583-1586). I encourage readers interested in this issue to read Mr. Zaic’s explanation. I am not sure that his explanation holds up. Mr. Zaic seems to argue that his default tiebreaking strategy is somehow anchored in Skidmore, thus surviving Loper Bright, because it would be deployed less frequently than Chevron deference was deployed. I am not convinced that is the case after courts started emphasizing the importance of Chevron footnote 9 vigorous statutory analysis at Step One. Indeed, as I have noted above, the proper function of Chevron always required use of all statutory interpretive tools at Step One and only then go to Step Two if the court could not determine the best meaning. After all Chevron footnote 9 was always part of Chevron deference.

I raise another key point on Skidmore, a December 1944 opinion (just a about 10 months before the original bills resulting in the APA was enacted in 1946). In Skidmore (p. 140), Justice Jackson said for a unanimous Court:

This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin.

JAT explanatory note, Treasury Decisions and interpretive regulations are the same thing: Treasury Decisions adopte regulations--whether interpretive or legislative regulations.

Technically speaking, that statement was dicta because Skidmore involved subregulatory guidance, but it was certainly persuasive dicta from a unanimous Court as to the state of the law. My research indicates that this unanimous statement in Skidmore was the last pronouncement the Court made on deference prior to the APA enactment in 1946. Note also that this unanimous statement echoes Dobson (cited above) where the unanimous court in an opinion also by Justice Jackson deferred to the Tax Court interpretation for two reasons: (i) the statutory text discussed above) and (ii) deference to established law for agency interpretations because the statute said the Tax Court was an agency  A related fun fact is that the Court continued to defer shortly after the APA was enacted. Thus, for example, Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501(1948), issued just 659 days after the APA, stated:

This Court has many times declared that Treasury regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes and that they constitute contemporaneous constructions by those charged with administration of these statutes which should not be overruled except for weighty reasons. See, e.g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378.”

It thus boggles my mind that Justice Roberts could claim with at least a judicial poker face disguising a bluff that the law at the time of enactment of the APA required de novo review of agency interpretations.

Finally, one issue I have is whether Skidmore requires some ranking of agency interpretations such as developed under Chevron. Under Chevron:

• only agency interpretations in notice and comment regulations generqally qualified for Chevron deference.
• agency interpretations in subregulatory guidance (e.g., for tax, revenue rulings) did not qualify for Chevron deference.

Will there be some similar ranking in the application of post-Loper Bright Skidmore deference? (I use the term Skidmore deference because that is commonly used, although as it is articulated, it is more a slight nudge than deference in the interpretive process under Chevron Step One.) Skidmore’s articulation requires or permits courts to consider the agency’s diligence (thoroughness, etc.) in the process of determining the best interpretation. While notice and comment regulations passing the arbitrary and capricious procedural test provides some assurance that the agency’s interpretation is thorough, subregulatory interpretation short of notice and comment can demonstrate thorough agency consideration and even pass a reasoned decisionmaking test. I simply raise the question and do not answer it. 

I ask the further question, though, as suggested by Mr. Zaic’s article that subregulatory interpretations can present the same ambiguity phenomenon (the agency interpretation and the opposing interpretation is in the zone of ambiguity but neither is the best interpretation). Could the same default tiebreaker rule apply for subregulatory interpretations? If not, how does a court then decide the case? For example, the article p. 1582 n. 244) poists: "judges may break a tie by choosing the option that brings about the outcome their political ideology prefers. Or maybe they break a tie through something as ridiculous as a coin flip.” Mr. Zaic is not comfortable with that genre of tiebreaker resolutions in interpretive ambiguiity (equipoise). Nor am I. Nor, I suspect, would most readers of his article and this blog be comfortable with that type of tiebreaker resolution.

Of course, that raises the much broader and probably more philosophical question of how judges resolve cases where a critical feature, fact or law, is ambiguous (in equipoise). In fact equipoise, the burden of persuasion is the default rule forcing a resolution against the party bearing the burden of  persuasion; in law interpretation or even law generally, how does a judge decide the case? In my article mentioned above, I posit the answer to the question similar to Mr. Zaic: "Flip a coin? Consult a soothsayer? Ouija board? Or, more likely, follow its [the courts’] policy or gut preferences?” I now answer the last question YES, meaning that the court’s policy or gut preferences control the outcome of the immediate case at hand until some higher court (or if an appellate court, the court en banc) exercises different policy or gut preferences. I am not comforted with that state of affairs, although that is the logical phenomenon if courts really believe that they cannot accept a state of interpretive ambiguity.

I wish Mr. Zaic the best in his future as a scholar or practitioner!

A JAT Addendum (Further Rant on Loper Bright although Elaborating Points Above):

I could engage with several sophisms in Justice Roberts’ Loper Bright Opinion for the Court in Loper Bright. Some of these will appear in an article submitted and, as I understand it, accepted for publication to the Tax Lawyer. But I raise only one here which because addressed above is a further rant. Justice Roberts claims (e.g., p. 408) that Chevron permitted a court to give up interpretive work when it found an agency interpretation reasonable which he imagines is a broader range on the interpretive scale than ambiguity/equipoise. In other words, he imagines that Chevron required a court to apply a reasonable agency interpretation that the court determined was not the best interpretation.

Properly applying Chevron required, that a court complete all the interpretive work that it can deploy and still find ambiguity (equipoise). See Chevron, p. ___ n. 9. Thus, Justice (then Judge Kavanaugh) explained (Brett M. Kavanaugh, Book Review: Fixing Statutory Interpretation, 119 Harv. L. Rev. 2118, 2153 n. 175 (2016)):

After all, footnote 9 of Chevron told us explicitly that we should employ all the ‘traditional tools of statutory construction’ to resolve any statutory ambiguity before we defer to an agency. Chevron, 467 U.S. at 843 n.9. Of course, when we employ those tools of interpretation, we often resolve the ambiguity and thereby get an answer. So in those cases, we would not have to defer to the agency at all. Therefore, if we took Chevron footnote 9 at face value, fewer cases would get to Chevron step two in the first place.

In other words, Chevron Step Two required that the agency interpretation and the opposing interpretation be within the zone of ambiguity (equipoise), meaning that the Court cannot determine the best interpretation. That is, of course, the phenomenon that Mr. Zaic claims in his article to require application of the agency interpretation as a default tiebreaker to force a result in a statutory interpretation dispute. Spot on Mr. Zaic.

Added 3/7/26 4:40pm: In Sanders v. Plappert, ___ F.4th ___ (6th Cir. 3/3/26). CA6 here and GS here,  the Court applied something called AEDPA deference (Antiterrorism and Effective Death Penalty Act ("AEDPA")), which narrows our ability to grant habeas relief when a state court decision has already decided a petitioner's claim on the merits. At one point, the panel majority calls (Slip Op. 21) AEDPA a "doubly deferential standard; I'm not sure what doubly adds to the concept of deference. In the course of its discourse, the panel majority held (Slip Op. 2) that the Appellant's arguments failed even under de novo review. In passing, the panel majority opinion makes the same mistake about Chevron deference that Justice Roberts made. Thus, the panel majority claims (Slip Op. 16): 

The issue with Chevron deference was that it mandated the Court to accept an interpretation of the law that was not its own. See id. at 427-28, 430-31 (Gorsuch, J., concurring).

The panel majority refers to Justice Gorsuch's concurring opinion, but Justice Roberts made the same mistake in the Loper Bright Opinion for the Court as noted above. Chevron mandated a default application of the agency interpretation only where, after trying to determine the best interpretation at Step One, the court could not determine the best interpretation because the agency interpretation and the opposing interpretation were within the scope of the interpretive ambiguity (where a best interpretation could not be determined). Many, many others (sometimes with a libertarian bias or at least an anti-state bias) have made that mistake about Chevron deference; I made the mistake early when getting into the Chevron discussion with my own research rather than repeating the claims of others. I have for some time now corrected my understanding how Chevron deference was (or at least should have been) applied.