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Against Skidmore Deference

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.

Reader Discussion

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on January 05, 2018 at 09:02:46 am

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Against Skidmore Deference | Top 100 Blog Review
on January 05, 2018 at 09:13:54 am

Good and well reasoned argument. The only time the court should impose (unexamined) deference to the expertise of an Agency is only if and after, the opposing party either concedes to that expertise, or fails to convincingly demonstrate its inadequacy by its own counter-expert testimony.

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Paul Binotto
on January 05, 2018 at 09:58:24 am

Am I the only one who sees the circularity, or question-begging, with formulations of this style: 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??

These standards are merely a definition of expertise. Anyone who can make these determinations is himself an expert in the subject under consideration. The idea that persuasion ought to be the standard is nonsensical. Persuasion is a matter of rhetorical performance. Categorically it requires producing an understanding in the addressee based on factors other than subject-matter expertise, rendering the possession of such expertise, and therefore the question of whether the speaker is or is not entitled to deference on the basis of that expertise, secondary if not meaningless.

The problem of the administrative state is not one that can be judicial-doctrined away. Once you concede the necessity of so many areas of our lives being administered at all, and once you concede the foundational premise that the administrators possess a knowledge and expertise that entitles their beliefs--presumptively or conclusively, it doesn't matter--to control and limit your actions, then you have closed the trap, which can be reopened only from the outside and not, as we learned from Goedel, from within the very system of logic that gave us the administrators in the first place.

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QET
on January 05, 2018 at 13:04:15 pm

And yet, one who is *expert* is not necessarily operating within the limits imposed upon his position; nor are experts always to be deemed to be operating within the bounds of the law.

One element that is missing from these neat little summations / arguments is *motivations*. What, indeed, are the motivations of an agency, of the factotems comprising such an agency? Are we to ignore those motivations on the predicate that the expertise of the agency is sufficient to dispel any possibility of "factious" behavior?

Recall:

The expert presumes to have knowledge sufficient to address all possible outcomes while the populace assumes that the experts in fact possess that which is not possessable, i.e., unlimited knowledge and prescience.

No deference for you - no soup either!!!!

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gabe
on January 05, 2018 at 19:27:30 pm

I practiced environmental law and litigation for 40 years, both for and against state government and EPA. After departing EPA in 1975 I entered private practice and was representing industry in 1984 when the deference brainstorm was concocted. I thought then that Chevron deference was unconstitutional made no sense, was unfair to private parties and was unnecessary to persuade the DC Circuit and the Supreme Court to support EPA's interpretation of the Clean Air Act and EPA's plan for addressing new source permitting in Clean Air Act non-attainment areas.

Thirty-three years later, I am even more convinced of that conclusion. Justice Gorsuch's mom, Ann, was responsible for signing off on that Chevron deference mistake (although I'm certain that such a brilliant idea could only have come from the haughty law review heights of DOJ's Natural Resources Division.) Let's hope the late Administrator's son, Justice Gorsuch, can correct that mistake.

Yet, deference may be necessary if the Trump/ Pruitt EPA is to undo the grave damage done by the Obama EPA and the DC Circuit in Coalition for Responsible Regulation et al. v. EPA, whose ruling/ rationale must be addressed if the Greenhouse Gases Endangerment Finding is to be undone. If that goal is not achieved, undoing the Endangerment Finding, the war for environmental law sanity will have been lost.

Indeed, the war for liberty under law may have been lost, since Climate Change is an existential regulatory rationale through which Cryptofa ("Crypto-Fascists") can achieve total control, a dirigisme, over the US economy and statist control over the daily lives and doings of its citizenry.

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timothy
on January 05, 2018 at 22:22:27 pm

I guess there is a strong form of skidmore and a weaker form. Under the stronger form, government agencies are given a special level of deference above private party's with the same level of persuasiveness. I don't agree with that in the general sense. But, to a certain extent, I do think there is "something" more about long standing opinion of an agency. If the agency has announced publicly that the statute means X, and they have enforced the statute consistent with that, and it has been a long time with multiple administrations consistently interpreting the statute to mean X, and almost no one has challenged this opinion before, then there is something more persuasive about that, beyond just the originalist reasoning based on dictionaries/cannons etc. Its a kind of a "wouldn't someone have complained" if the statute really meant something other than what the agency said it meant? There is something more there that normal private parties cant usually do. But it has a lot of "what if's" to trigger, and even then should only be a weak presumption. It has certain "rule of law" qualities to it that promote stability.

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Devin Watkins
on January 06, 2018 at 12:36:47 pm

Yep! - you do have a point there re: "undoing grave damage"

It is not unlike the situatiobn with Executive Orders, a governmental mechanism that has suspect constitutional support. YET, it may very well be REQUIRED to issue similar suspect directives in order to *undo* that which has been done.

Question, of course is: At what point do we return to a more constitutionally sound basis / predicate for policy actions?

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gabe
on January 06, 2018 at 15:03:19 pm

Re our "returning to a more constitutionally sound basis..."
That is IMPERATIVE, and we must not undo unlawful bad ideas with unlawful good ideas. I can't support that on grounds of principle and pragmatism.

But we can lawfully undo some of Obama's Executive Order and regulatory damage in the critical areas of environment and energy through lawful EO's and lawful notice and comment rulemaking. That process has already begun in the enviro area with withdrawal of the Coal Plan and the proposal to withdraw EPA "guidance" (haha) under the Clean Water Rule and in the energy area with withdrawal of Obama's proposed fracking reg's and Trump's EO opening our coasts to energy exploration and extraction.

Further steps through the rulemaking process are legally required to undo much Obama damage, foremost of which is the laborious rule-making process that must support withdrawing EPA's Endangerment Finding ("EF"), the vital KEYSTONE of the Left's entire Climate Change agenda. First, EPA must decide WHETHER to initiate the EF withdrawal process. Most importantly, at this stage that is far more a political than a legal determination. As with the Paris Climate Accord, there is very strong political pressure to retain Obama's EF within a) the establishment Republican Party (e.g. not just the Rino's but the Bush bunch and Romney), b) the White House and c) Big Business (always cowardly and unprincipled). Worry most about a) the Rino's, b) Secretary of State Tillerson (big Trump mistake; he should never have appointed a man recommended by Condoleeza Rice) and c) Ivanka and Jared (the Dem's Fifth Column) and d) the likes of Exxon, other large turncoat energy co's and the Business Roundtable likes of GE (all of whom stand to profit bigly off Obama's Climate Change agenda.) EPA's simply marvelous Pruitt (with DOI Zinke's help,) Trump's commitment to West Virginia (almost heaven is my homeland) and mid-sized coal co's like Murray Energy won the internal fight on the Paris Accord.

I have no prediction about the political chances for seeing the light of day of a serious PROPOSED rule for EF witdrawal and modification. But I know the law and the science, and I put the two together successfully for decades for government, for industry, and both for and against EPA. And I KNOW, as a matter of LAW and SCIENCE, that IF EPA systematically marshalls the proper scientific record and thoroughly lays the necessary legal defense to support a proposed rule withdrawing or substntially modifying Obama's EF, that rule will be adopted and it will withstand the furious legal attack that the Enviro-whacko's and Big Corporate will wage against it.

Other areas of Obama environment and energy damage will require legislative rather than EO or rule-making remedies. Important legislative steps have already been implemented: 1) opening up Anwar (a consequence of the tax law, perhaps its most important result besides lowering corporate tax rates and "repatriation." I wish we could repatriate some of those Dem's who, when I was a boy, loved our country. But when I was a boy America was still a free country:) and 2) the use of the Congressional Review Act to undo 14 major Obama regulations in a variety of areas (these are massive.) Further legislative changes are needed, particularly in the Clean Air Act, the Endangered Species Act, the Administrative Procedure Act and with AdminLaw generally.

Finally, some small part of what needs to be done (but is not politically doable) can be attempted through litigation. Litigation as a path to reform is dubious at best (except as to AdminLaw issues like Chevron and myriad others.) And the litigation path can be taken ONLY when an attempt is made to enforce bad regulations, since under the APA appeal deadlines long ago expired.

So, there are lots of lawful ways to repair some of the enormous wreckage that Obama wrought. We need not revert to lawlessness in order to redress lawlessness.

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timothy
on January 25, 2018 at 21:26:37 pm

[…] Chevron (contra preferentum? No thanks), Auer (shares Chevron’s faults) and Skidmore (demonstrations of agency expertise). And Michael Greve on some historical and comparative-law […]

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Administrative law roundup – Kedis

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