When an agency interprets a statute it administers, a court will defer to the agency’s interpretation when the statute’s meaning is ambiguous and the agency’s interpretation is a permissible construction of the statute. This is the famous Chevron deference. Chevron deference has become increasingly controversial, and the Supreme Court will have an opportunity to reevaluate the scope of this canonical rule in American Hospital Ass’n v. Becerra. One amicus brief is already calling for the deference to be done away with all together. But besides Chevron deference, there are other deference canons which would survive Chevron’s potential demise,

Three Terms ago, the Court revisited the little brother of Chevron deference: Auer deference. Auer is to agency regulations what Chevron is to agency statutes: a court will defer to the agency’s interpretation of its own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” In Kisor v. Wilkie, the Court declined to overrule Auer and declined to give Auer deference to the agency. Instead, it ‘Chevronized’ Auer, adopting Chevron’s two-part framework: when an agency interprets a regulation it authored, a court will defer to the agency’s interpretation when the regulation’s meaning is ambiguous and the interpretation is neither a plainly erroneous nor an inconsistent construction of the regulation. But the Kisor Court also added several additional requirements: the interpretation must be authoritative on a matter implicating the agency’s specific expertise and it must be the result of “fair and considered judgment.”

Chevron and Auer can be viewed as a consensus for how agencies operate vis-à-vis congressional statutes. For Chevron, that view rests on an assumption that ambiguity in a statute was intended by Congress to authorize agencies to fill in any regulatory gaps as the agency sees fit. For Auer, that view rests on an assumption that ambiguity in a regulation should be resolved by its author—the agency. Such assumptions give wide latitude to agency decisions. An agency can receive Chevron deference even when there is judicial precedent directly contradicting the agency’s determination. That problem presented itself to the Court in National Cable & Telecommunications Ass’n v. Brand X Internet Services. Though a lower court had ruled that the FCC could not regulate a broadband internet service provider as an information service because prior circuit precedent held that it was a telecommunications service, the Court held that the agency was entitled to deference because the statute was ambiguous. But what if an agency doesn’t deserve Chevron deference?

In United States v. Mead Corp., the Court held that agency interpretations that do not merit Chevron deference may still obtain deference in the form of Skidmore deference, a mode of analysis first recognized in the eponymous Skidmore v. Swift & Co. Unlike Chevron of the 1980s or Auer of the 1990s, Skidmore harkens back to the twilight of the New Deal in 1944. There, the Court held that while “rulings, interpretations and opinions” of an agency were not controlling upon the courts, they did constitute a body of informed judgment that courts would resort to for guidance. This body of work is to be evaluated by (1) the thoroughness of the agency's consideration, (2) the validity of its reasoning, (3) the consistency of its interpretation over time, and (4) other persuasive powers of the agency. As a result, courts defer to agencies to the extent they are persuasive. And yet Justice Scalia, a vehement defender of Chevron deference, nevertheless issued a vigorous solitary dissent in Mead from what he called “an avulsive change” in the seeming revival of Skidmore deference.

Alongside Skidmore is Bowles v. Seminole Rock & Sand Co. While deference to an agency’s interpretation of its own ambiguous regulations is popularly known as Auer deference, that is something of a misnomer because Auer merely reiterated the standard set in Seminole Rock—Auer deference is Seminole Rock deference. Seminole Rock can also fall within the realm of Skidmore – one can perhaps even read “plainly erroneous or inconsistent” into the third Skidmore factor. If an agency does not deserve the now Auer-Kisor deference, the agency would likely be allowed to obtain Skidmore deference. After all, what is “fair and considered judgment” if not an amalgamation of the four Skidmore factors?

The passage of time and changes of administrative practice can swing judicial philosophy. Case and point: Justice Scalia, a defender of Chevron and the author of Auer, later had reservations on the former and doubts about the latter. Justice Thomas, the author of Brand X, recently called for a revisit of his own opinion.

But critics of Chevron and Auer should understand that those rules are built on an older framework. Doing away with Chevron would leave Skidmore deference. Doing away with Auer-Kisor would also leave Skidmore deference. Though the ills of Chevron and Auer can be framed as democratic accountability versus agency action, it is hard to fathom a less democratically accountable institution than the judiciary. Should deference evaporate, the judiciary would be left deciding the proper constitutional scope of agency regulations, presumably according to the Skidmore factors.

Whether one talks about Chevron or Auer, it’s Skidmore all the way down.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].