Courts Show Little Interest in Skidmore as a Chevron Alternative

Federal judges reviewing agency actions have largely omitted from their rulings an 80-year-old precedent calling for a mild form of deference to the government in the month since the US Supreme Court struck down the more powerful Chevron doctrine.

The high court’s recent decision in Loper Bright Enterprises v. Raimondo ended the requirement that courts defer to reasonable agency interpretations of ambiguous laws, while ostensibly leaving available Skidmore deference—which calls on courts to give weight to agency stances according to their persuasiveness.

But federal courts didn’t refer to 1944’s Skidmore v. Swift & Co. in 19 of 20 rulings on agency actions that cited Loper Bright, according to a Bloomberg Law review of decisions issued between June 28 and July 26. The lone exception raised Skidmore immediately after saying the law at issue wasn’t subject to any type of formal deference.

Federal judges ruled against agency interpretations in 13 of the decisions, including orders blocking rules prohibiting discrimination against transgender people in health care and education, banning worker noncompete agreements, raising the salary threshold for eligibility for workers’ overtime eligibility, and broadening the scope of retirement advisers that qualify as fiduciaries.

The absence of Skidmore in those recent decisions raises the possibility that, in practice, Loper Bright may have also sidelined that type of deference as judges forge their approaches to reviewing agency actions that treat the federal government more like it’s any other litigant.

“It’s not shocking that the response to a pretty emphatic rejection of deference has been for courts to be a little bit shy about applying it under a different title or rubric,” said Paul Clement of Clement & Murphy PLLC, who represented Loper Bright at the Supreme Court. “Going forward, the right way to look at it is not Skidmore deference, but Skidmore respect.”

Judges might not specifically cite Skidmore by name in future decisions even if they invoke its basic principle, said Corinne Snow, former counselor and chief of staff at the US Justice Department’s Environment and Natural Resources Division.

“Skidmore just reflects the practical reality that we trust those that we find credible,” said Snow, an attorney at Vinson & Elkins LLP. “We call it a legal doctrine but it’s also just a common sense and practical reality.”

When Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. was still good law, courts mainly used Skidmore when assessing agency interpretations made in less formal vehicles than regulations that emerged from the notice-and-comment process, such as opinion letters and enforcement guidelines.

Still, agency rules could be more vulnerable to legal challenges if judges don’t use Skidmore to fill the hole left by the death of Chevron.

Circuit courts from 2003 to 2013 upheld agency interpretations of statutes 17% more frequently under Skidmore than when they decided cases without any deference, according to a 2017 Michigan Law Review article. Agency interpretations survived 21% more often when circuit courts cited Chevron than when they cited Skidmore.

Loper Bright Deference?

The Supreme Court’s conservative majority set forth a new standard in Loper Bright calling on judges to use their “independent judgment” to decide whether an agency acted within the authority that Congress granted it.

The ruling tasks judges with finding the “best reading” of a law—but that doesn’t mean it foreclosed all forms of deference, legal observers said.

Loper Bright shouldn’t prevent the courts from giving substantial weight to agencies’ scientific and factual findings, said Allison Zieve, director of Public Citizen’s Litigation Group.

Moreover, that decision recognized that some laws specifically assigned authority to agencies, creating a lane for deference, Zieve said.

Chief Justice John Roberts wrote in the high court’s opinion that “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”

Roberts also invoked Skidmore several times to say that courts can give weight to agency interpretations in some circumstances.

“In an agency case in particular, the court will go about its task with the agency’s ‘body of experience and informed judgment,’ among other information, at its disposal,” Roberts wrote, quoting from Skidmore. “Such expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’”

The factors giving agency interpretations special weight under Loper Bright can stack up.

A federal judge in California, for example, found that Congress expressly delegated authority to the Federal Communications Commission to flesh out the Telephone Consumer Protection Act. The FCC’s interpretation had persuasive power because its interpretation of the law—the inclusion of cell phones on the Do Not Call Registry—was premised on facts within the agency’s expertise, the Biden appointee added.

“To the extent agencies can frame questions in terms of science and technical expertise, they’ll do so because of the sense that courts will still be inclined to give deference on those types of questions, as opposed to purely dictionary definition-based interpretation of statutes,” said Ethan Shenkman, a former Environmental Protection Agency deputy general counsel who practices at Arnold & Porter Kaye Scholer LLP.

Judges to the Front

Whether agency actions get something like Skidmore deference—and how they’ll fair in the post-Chevron environment more broadly—will largely depend on the judges who review them, legal observers said.

Justice Elena Kagan, the Obama appointee who penned the dissent in Loper Bright, said there’s a “delta” between the levels of agency deference under Chevron and Skidmore, but “how large the delta is not at all clear,” she said. And for some judges, Skidmore deference and Chevron deference are going to look “pretty darn close,” she said at the Ninth Circuit judicial conference last week.

Some judges may give an edge to an agency when regulations are technical and within its expertise, consistent with Skidmore, while others decide based on what they think is the best reading without giving the agency’s view any special weight, said Kevin Minoli, a former acting general counsel at the EPA.

“The folks who wanted Chevron overturned talked about the problem of unelected bureaucrats deciding policy,” said Minoli, an attorney at Alston & Bird LLP. “The reality is that all judges are unelected bureaucrats, they just have lifetime tenure. Loper Bright traded one set of unelected bureaucrats for another.”

Chevron mandated what had already been a general judicial practice, ensuring that an “outlier judge could be brought into line,” said Robert Hockett, a Cornell University law professor who specializes in financial regulation.

How Loper Bright ultimately impacts the regulatory state “really does depend quite heavily on the future course of judicial appointments,” he said.

District court decisions on requests to freeze Biden administration regulations show a partisan pattern, according to Bloomberg Law’s review. Seven of the eight rulings that paused rules were issued by Republican-appointed judges, while a Democratic appointee handed down the one ruling rejecting an injunction bid.

The end of Chevron and the rise of the major questions doctrine—which demands that Congress clearly delegate authority to agencies to regulate the most important issues—has shifted power to individual judges, putting the most controversial and politically fraught regulations at high risk of being axed in court, said Kimberly Wehle, an administrative law professor at the University of Baltimore.

“When it’s a vanilla, run-of-the-mill, under-the-radar—but important—regulation, I think that will hum along,” she said. “For all the stuff that’s politically polarizing, I think agencies will have to decide what’s the point of going through the whole notice-and-comment process if the rules are going to be struck down later.”