Skidmorizing Chevron: Cabining but Keeping Chevron, by Brittani Randall and Linda D. Jellum - Yale Journal on Regulation

This reasonable sounding approach to avoiding grave wreckage at the Supreme Court is not as moderate as the headline suggests.  In kisor - a case involving VA benefits, Neil Gorsuch took the occasion to launch a full scale attack on deference to agency determinations,  He urged that the Court go "directly back to Skidmore, liberating courts to decide cases based on their independent judgment and “follow [the] agency’s [view] only to the extent it is persuasive."

That's a prescription for judicial marauding through the Code of Federal Regulations.

- GWC

Skidmorizing Chevron: Cabining but Keeping Chevron, by Brittani Randall and Linda D. Jellum - Yale Journal on Regulation

By 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.

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,