Notice & Comment

Loper Bright, Skidmore, and the Gravitational Pull of Past Agency Interpretations

I’m currently writing an article tentatively titled “Statutory Liquidation,” which is about courts use of post-enactment practice or understanding to settle statutory meaning.* I was particularly interested, then, when in Loper Bright the Court not only cited Skidmore with seeming approval, but repeatedly emphasized the “respect” traditionally afforded to longstanding, consistent agency interpretations, especially when offered close in time to the statute’s passage. The Court even invokes Noel Canning, the case perhaps most associated with constitutional liquidation and the related but distinct “historical gloss” method. In my view, this could be an important area to watch in the post-Chevron world.

To unpack a bit: First, on the brewing controversy over whether the Court replaced Chevron deference with Skidmore deference: I think yes and no. To my eye, the Court endorsed Skidmore, or at least the factors associated with Skidmore expressly mentioned in Loper Bright. But it doesn’t want to call Skidmore “deference,” because it believes the thing called deference is not allowed under the APA. And so we also get some language endorsing de novo review.

Perhaps the way to square that circle (with thanks to Ryan Doerfler for pointing me toward his article making the following point) is by saying that Skidmore is really about uncovering statutory meaning. So, the Loper Bright majority might say, using it does not constitute deference any more than consulting a dictionary does. Chevron was different in that it was premised on the idea that the law had “run out,” and the agency simply got to decide the question. Loper Bright seems to embrace something like this distinction in footnote 3.

In any event, whether we call it deference or not, the continued existence of Skidmore does imply that sometimes agencies’ views will be outcome determinative. After all, if Skidmore could never matter to the outcome, then why bother to preserve it?

If that’s right, the remaining questions are which agency interpretations are most likely to be outcome determinative, and why, under the Court’s theory, should they be. It’s on the first question that the Court seems drawn to the idea that longstanding, consistent, and, especially, “contemporaneous” interpretations should be afforded greatest weight. An agency armed with such an interpretation should thus be in the best position post-Chevron.

Although the Court doesn’t say so, it would be a good bet that an agency taking a position inconsistent with its past views will be given a kind of negative deference—if we might call it that. Here, the gravitational force associated with the prior agency interpretation pulls the court away from the agency’s new position and toward the old. It’s evident from the opinions (as well as oral argument) that what perhaps most bugged some of the justices about the Chevron regime was the ability it gave agencies to change their minds. This aspect of the new doctrine may dissuade agencies from doing so, even if they think they have pretty good support for the new interpretation.

What justifies privileging early or first-in-time agency interpretations? One potential answer is historical: If the courts used a kind of contemporaneous understanding canon when undertaking “de novo” review for many decades prior to the APA’s passage, as Aditya Bamzai has argued, then courts should continue to use such tools today. Even accepting the historical premise, I’m not sure I buy it. It’s one thing to say, as the Court did, that the APA mandates de novo review by its particular language. It’s another thing to say that, when undertaking such review, courts must employ the exact same interpretive tools the courts would have used in 1946. And it takes some work to reconcile the emerging practice with modern forms of textualism, particularly depending on how “contemporaneous” the agency interpretation actually is.

There are a bunch of other reasons courts might rely on longstanding, consistent, and/or contemporaneous agency interpretations. I’m trying to puzzle through some of them in the project I mentioned at the outset. Suffice it to say, it’s a work in progress.

* Hat tip to Will Baude, author of “Constitutional Liquidation.”

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