Mike Lofgren argues that the Deep State controls everything, but he attributes too much to malice, and not enough to ignorance and self-interest.
In my last post, I explained why I oppose both Chevron and Auer deference, which give agencies additional power, undermine the rule of law, and provide bad incentives to agencies.
Scholars are increasingly coming to oppose these doctrines. But most scholars who oppose them tend to favor substituting them with Skidmore deference. Skidmore deference provides that even if agencies are not entitled to deference as a matter of right, they should still be accorded deference to the extent that they demonstrate their expertise in their interpretation of a provision. As Justice Jackson wrote in Skidmore:
We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case 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.
Since the agencies appear to earn their deference by displaying expertise, many people view this type of deference more favorably than deference under Chevron and Auer.
But I also oppose Skidmore. In my view, Skidmore is not needed to take expertise into account and represents another government privilege, just like Chevron and Auer.
First, if Skidmore deference is justified based on expertise, then why is such deference applied only to government agencies? After all, private parties can also be quite expert about particular areas. While the Federal Communications Commission may have significant expertise about telecommunications, so will established companies, such as Verizon or ATT, who regularly must comply with telecommunications statutes and regulations and have access to accomplished lawyers. The failure to accord private parties deference suggests that Skidmore confers a privilege on the government.
Moreover, it is not necessary to have Skidmore deference to incorporate expertise. If an agency exhibits expertise, then its actions will be more persuasive to the court than if the agency does not do so. The best way to incorporate the agency’s expertise into the legal system is simply for courts to evaluate whether the arguments in agency opinions and briefs are convincing. No separate rule of deference is needed. Further, under this method for incorporating expertise, a private party’s expertise can also be considered. If the private party’s brief exhibits expertise, it will be more persuasive.
Some readers might believe that the courts are not equipped to judge the persuasiveness of the agency’s argument. They might think that the courts would reach more accurate results by following a version of the Skidmore approach. Under that approach, the court would determine whether the agency exhibits traits often associated with expertise, such as thoroughness, formality, and consistency, and then would confer deference if those traits are present. It is by no means clear that the courts would reach more accurate results by considering these factors. But if one did believe such considerations were relevant, the court could also for look for those in the private party’s briefs.
In the end, Skidmore deference purports to be about recognizing expertise, but it operates to confer an advantage on agencies. It is not needed to incorporate agency expertise. It should be ended, with courts simply following the more persuasive argument made by the parties.