An rule or order is unconstitutional agency’s An rule or order is beyond the statutory authority agency’s agency’s An interpretation of law within a rule or order is wrong agency’s E.g., in informal adjudication, a USDA inspector saying the law only allows you to build a fence 8 feet instead of 9 feet An agency did not follow all the procedures required by law, whereas the agency would argue those procedures required by law weren’t Statutory interpretation Analysis Chevron STEP 0 Is this a case where Congress has delegated authority to the – agency to speak with the force of law and the interpretation at agency’s issue is an exercise of that authority? Explanation Force of law? This generally requires that the agency be able to issue legislative rules The agency is called for by statute to issue statements via formal adjudications or formal rulemaking does not apply to nonlegislative rules (such as a Chevron ruling letter) Is the agency statement at issue an exercise of that authority? IF YES… Go to Step 1 Public policy: The implicit delegation to the agency to make law IF NO… deference (weak deference) applies: Under the Skidmore Skidmore, courts defer to agency statutory interpretations on a sliding scale based on the formality of the process, the importance of agency expertise, and the degree to which the reasoning is agency’s persuasive In deference, the following factors are considered: Skidmore How careful was the agency? Thoroughness Validity of the reasoning Consistency with prior statements made by the agency Technical or significant policy calls—is it the agency’s core area of expertise (if yes, more deferential to agency interpretation) There are two approaches: Majority (75%): The in which the “sliding scale” approach, court does generally owe deference to an agency interpretation, but the extent of that deference depends on contextual factors such as those identified in Skidmore itself (consistency, thoroughness of consideration, etc.) follows this Christensen
An agency’s rule or order is unconstitutional An agency’s rule or order is beyond the agency’s statutory authority An agency’s interpretation of law within a rule or order is wrong E.g., in informal adjudication, a USDA inspector saying the law only allows you to build a fence 8 feet instead of 9 feet An agency did not follow all the procedures required by law, whereas the agency would argue those procedures weren’t required by law Statutory interpretation Chevron Analysis STEP 0 – Is this a case where Congress has delegated authority to the agency to speak with the force of law and the agency’s interpretation at issue is an exercise of that authority? Explanation Force of law? This generally requires that the agency be able to issue legislative rules The agency is called for by statute to issue statements via formal adjudications or formal rulemaking Chevron does not apply to nonlegislative rules (such as a ruling letter) Is the agency statement at issue an exercise of that authority? IF YES… Go to Step 1 Public policy: The implicit delegation to the agency to make law IF NO… Skidmore deference (weak deference) applies: Under Skidmore, the courts defer to agency statutory interpretations on a sliding scale based on the formality of the process, the importance of agency expertise, and the degree to which the agency’s reasoning is persuasive In Skidmore deference, the following factors are considered: How careful was the agency? Thoroughness Validity of the reasoning Consistency with prior statements made by the agency Technical or significant policy calls—is it the agency’s core area of expertise (if yes, more deferential to agency interpretation) There are two approaches: Majority (75%): The “sliding scale” approach, in which the court does generally owe deference to an agency interpretation, but the extent of that deference depends on contextual factors such as those identified in Skidmore itself (consistency, thoroughness of consideration, etc.) Christensen follows this