This post was originally published on Legal Planet. Reprinted with permission.
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone?
As I’ll discuss in a later post, regulations that were upheld by the courts during the Chevron era have some protection, but new regulations will be fully subject to Loper rather than Chevron. The general refrain in the Loper opinion is “Skidmore deference.” What does that mean and when does it apply?
Skidmore was decided 80 years ago. The issue was whether a company’s fire crew should get paid for the nights they were required to stay on the premises in case a fire broke out. Should they get paid for the whole night, or only the time actually spent responding to alarms? A federal agency was charged with enforcing the minimum wage law, and it had evolved a theory about how to deal with the issue of waiting time.
The Court said that the agency’s theory wasn’t binding but that there were good reasons to rely on it: “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 Court added: “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.”
In Loper Bright, the Court endorsed Skidmore as the proper approach to statutory interpretation. Although in the end, courts must make their own judgment about the meaning of a statute, the Court explained that “in exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.”
“Such interpretations,” the Court said, “‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA. Skidmore, 323 U. S., at 140.” Tracking Skidmore, the Court added that “interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.”
The Court also said that an agency interpretation may be especially informative “to the extent it rests on factual premises within the agency’s experts.” All of this adds up to an admonition that judges pay serious attention to the agency’s view of a statute — with just how serious depending on the circumstances.
In a previous post, I discussed what the Court had to say about statutes that delegate the power to an agency to interpret terms or fill gaps. Skidmore is clearly the controlling test for all other statutes. But deciding whether a case falls within the “delegated power” category is itself a question of statutory interpretation. As such, it should be subject to the Skidmore test, giving the agency’s views some weight in the court’s determination of the delegated power question.
Some commentators have tended to write off Skidmore and assume that judges will ignore agency views after Loper Bright. That is a misreading of the Court’s opinions in Loper and in Skidmore itself.
Showing 2,821 results
Daniel Farber | July 10, 2024
Regulations that were upheld by the courts during the Chevron era have some protection, but new regulations will be fully subject to Loper Bright rather than Chevron. The general refrain in the Loper opinion is “Skidmore deference.” What does that mean and when does it apply?
Daniel Farber | July 8, 2024
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone? This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.
William Funk | July 2, 2024
I am appalled by U.S. Supreme Court Chief Justice John Roberts’ opinion in SEC v. Jarkesy because it is so dishonest in its use of precedent. Put aside for the moment whether fraud under the Securities and Exchange Commission’s (SEC) statutes is the equivalent of common law fraud, despite the clear differences between the two. The Chief Justice’s description of the law regarding “public” versus “private” rights as a basis for placing enforcement actions in an agency rather than a court is itself a fraud.
Robin Kundis Craig | July 1, 2024
The Supreme Court's decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.
James Goodwin | July 1, 2024
The U.S. administrative state does not merely protect Americans against those threats that we are unable to protect ourselves from on our own. It is essential to a healthy economy, it provides a crucial platform for democratic self-government, and it functions as a great social equalizer. All of this is now at risk after the U.S. Supreme Court’s conservatives issued four separate decisions largely along ideological lines aimed at eviscerating this crucial institution. The administrative state has been built over the course of nearly 250 years, slowly and pragmatically, since the founding; it has taken just three decision days for the Court to undo much of that work.
James Goodwin | June 28, 2024
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that the self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
James Goodwin | June 27, 2024
Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.
Daniel Farber | June 27, 2024
Months ago, the U.S. Supreme Court agreed to hear an “emergency” request to stay EPA’s new rule regulating interstate air pollution. Like most observers, I was puzzled that the Court was bothering with the case before the D.C. Circuit even had a chance to consider the merits of the challenges. Months later, the Court has finally granted the stay, over a strong dissent from Justice Barrett. EPA may be able to fix the problem with this rule very quickly, and the opinion — at least on first reading — doesn’t seem to carry broad implications for other environmental litigation.
Daniel Farber | June 25, 2024
The U.S. Supreme Court agreed June 24 to hear a case about whether environmental impact statements need to address climate change. To read the arguments made about the case, you’d think that this was a common law area where courts establish the rules. But as I discuss in a forthcoming article, recent amendments have put a lot of flesh on the previously barebones law. The bottom line: The Supreme Court shouldn’t give advocates of narrowing the National Environmental Policy Act (NEPA) a victory that they were unable to get through the legislative process.