Notice & Comment

Skidmorizing Chevron: Cabining but Keeping Chevron, by Brittani Randall and Linda D. Jellum

As the Supreme Court ponders what to do with Chevron in Loper Bright Enterprises v. Raimondo and Relentless Inc., et al. v. Department of Commerce, Idaho’s Simplot test might provide a way to keep but cabin deference.

In 1991, in J.R. Simplot Co. v. Idaho State Tax Comm’n, the Idaho Supreme Court crafted a unique approach to agency deference in a case involving conflicting tax statutes. In J.R. Simplot, the court extensively reviewed the federal and states’ approaches to agency deference. Chevron was at its height in federal court, but states were all over the map. Some—like Utah, Alaska, and Nevada—had rejected the “traditional rule giving great weight to an agency’s interpretation,” while others—like California, Colorado, and Kansas—had continued to invoke the traditional rule, even if they did not always follow it.

After carefully considering the reasons for deferring to agencies, the Idaho Supreme Court developed a four-step test that we will call the Simplot test. Spoiler alert: turns out, the Simplot test is no more than a Chevron/Skidmore mashup!

At Simplot step one, a court must determine whether the agency has in fact been delegated the power to administer the statute. Simplot’s first step is Chevron step zero, answering the question of whether this is the correct agency to interpret the relevant statute.

At Simplot step two, the court must determine whether the agency’s interpretation is reasonable. Simplot’s second step is also Chevron’s second step, answering the question of whether the agency’s interpretation is fair and sensible.

At Simplot step three, the court must determine whether the language at issue in the statute already expressly answers the precise question before the court, because the agency’s interpretation cannot contradict what the legislature has clearly expressed. Simplot’s third step is a textualized version of Chevron’s first step, answering the question of whether the legislature has already spoken to the precise question at issue. Oddly, the Idaho Supreme Court reversed the order of Chevron’s first and second steps without explanation.

But at step four is where things get interesting, and we find vestiges of Skidmore. If after determining that an agency with authority to administer the statute has made a reasonable interpretation of statutory language to answer a question not directly addressed in the statute, then the court moves to step four. At step four, the court must ask whether any of the five rationales used to justify deference are present. If some or all the rationales are missing, then their absence may present “cogent reasons” for the court to adopt an interpretation that differs from the agency’s interpretation. Here are the five rationales:

(1) deference is appropriate when deferring to an agency interpretation would protect important interests that have developed in reliance on a certain interpretation that has existed for many years;

(2) deference is appropriate when an agency interpretation is a “practical” interpretation of general language;

(3) deference is appropriate when the legislature does not alter the statutory text following an agency’s interpretation because a court may presume that by not altering the text, the legislature acquiesced in the agency’s interpretation;

(4) deference is appropriate when an agency interpretation is formulated contemporaneously with the passage of the statute at issue, because this timing may indicate that the agency had insight into the legislative intent behind the legislation;

(5) deference is appropriate when an agency interprets a statute in its area of responsibility because of the agency’s expertise.

These factors may sound familiar. In Skidmore v. Swift & Co., the Supreme Court held that an agency’s interpretation was entitled to deference when it was persuasive. The Court specifically identified three factors that made an agency’s interpretation persuasive: consistency, thoroughness, and validity. Importantly, the Court added a catch-all of persuasive factors: “all other factors which might persuade the court to defer to the agency’s interpretation.” All of the Simplot deference factors are reminiscent of Skidmore’s power-to-persuade factors, such as consistency of the interpretation, practicableness of the interpretation, legislative acquiescence to the interpretation, contemporaneousness of the interpretation, and agency expertise. All of these were either expressly included in Skidmore’s power-to-persuade test or are “other factors which might persuade the court to defer.”  Additionally, the fifth factor also returns us to Chevron and its reliance on agency expertise to justify deference.

In short, the Simplot test combines aspects of both Chevron and Skidmore analysis. The first three steps of Simplot mirror all three steps of Chevron. The fourth step of Simplot brings in elements of both Chevron and Skidmore for a Skidmorizing of Chevron!

When the Idaho Supreme Court applied its new test in the case that spawned it, the court reached a surprising result: the agency lost.

The court first acknowledged that deference would be appropriate under steps one through three. The Tax Commission was “impliedly clothed with power to construe” the tax statute; the statute did “not directly address the question at issue;” and the Tax Commission had reasonably interpreted the statute because it concluded that the specific statute controlled the general one. While a court applying Chevron would have stopped here (and notice we reversed steps two and three of Simplot), a court applying Simplot has another step: the deference factor step. And here, the court held that the Tax Commission’s interpretation was not entitled to deference under any of the factors, even the expertise factor!

The Simplot test endured for more than forty years. But recently, the Idaho Legislature amended the Idaho Administrative Procedure Act (which is a verbatim copy of the federal Administrative Procedure Act) to include a de novo standard of review that “limits agency power and maximizes individual liberty.” As amended, the statute provides,

When interpreting the provisions of any state law, this chapter, or any rule, as defined in section 67–5201, Idaho Code, the court shall not defer to an agency’s interpretation of the law or rule and shall interpret its meaning and effect de novo. In an action brought by or against an agency, after applying all customary tools of interpretation, the court shall exercise any remaining doubt in favor of a reasonable interpretation that limits agency power and maximizes individual liberty.

Not only did the legislature reject deference entirely, but the legislature also chose a deference standard in which ties go to those challenging the agency rather than to the agency, or the state.

Although the Simplot test no longer has a place in Idaho, it provides a model for those jurisdictions that wish to scale back while simultaneously keeping some deference to agency interpretations.

Brittani Randall is a law student at The University of Idaho College of Law, and Linda D. Jellum is a Professor of Law at The University of Idaho College of Law.

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