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§ 706 …reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

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How are Chevron Step 2 and A&C different?! �(Another question = Are they even different?)

A&C examines agency’s decision-making process.
Chevron asks whether agency’s final decision would be prohibited by the terms of the enabling statute.
A&C analysis considers a broader scope – the entire agency decision-making process – rather than only statutory interpretation.

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So why does Chevron matter so much?

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Chevron v. NRDC

1 Permit or many permits?

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Court of Appeals

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Chevron 2 Step

When reviewing an agency’s construction of a statute that it administers, courts consider two questions:

whether Congress has directly spoken to the precise question at issue; and
if not, whether the agency’s answer is based on a permissible construction of the statute.

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If Marbury v. Madison says “It is emphatically the province and duty of the judicial department to say what the law is”, then why defer to agencies?

Agencies usually act under authority delegated from Congress
Agencies have a day-to-day familiarity with the law and its effect that courts lack
Agencies have expertise that courts lack

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Why?

Judges are not experts in the field
Judges are not part of either political branch of the Government

Judges must sometimes reconcile competing political interests, but not on the basis of their personal policy preferences

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Applying the 2 step process

Did Congress directly speak to this “bubble” permit policy? Nope.
Was the agency’s concept of the policy reasonable? Yup.

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In every rulemaking process, there are winning and losing stakeholders. Who wins and loses is for politics, and not courts, to decide.

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In short…

You can do the Chevron

TWO STEP!

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Chevron deference in court

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Scalia Chevron Thoughts

Scalia liked Chevron doctrine!
Scalia was a “textualist.” He gave primacy to statutory text and did not like to look beyond statutory texts (at legislative history, practical implications, etc.) to interpret statutes, including enabling statutes.
Scalia said: “One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.”

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Cases that have limited

Chevron Deference

Mead: Chevron only applies to agency statutory interpretations that have the force of law.

Skidmore & Christensen: Describe the “lesser” deference that agency guidance gets. (Christensen has some nice descriptive quotes)

Major Questions Doctrine: “In extraordinary cases, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation”

King v. Burwell & WV v. EPA (There are others, these are the ones we read)

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United States v. Mead Corp.

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Anyone remember these?

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United States v. Mead Corp.

This case gives us a 2-step test to determine when an agency’s statutory interpretation carries the force of law. (Only interpretations carrying the force of law are entitled to Chevron Deference.)

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Why does Customs Ruling Letter not carry the “force of law”?

On one hand, it is “binding on all Customs Service personnel”
On the other hand:

It can be modified or revoked without notice
Regulations provide that “no other person should rely on ruling letter…”
They are issued without any preliminary procedure or process
They are not published
They do not always provide reasons or rationales for rulings

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Mead Test

Chevron deference only applies when an agency interpretation is created through notice and comment, an order coming out of formal adjudication, or some other "relatively formal" procedure through which Congress intended for the agency to speak with the "force of law.” The Mead Court provided a two-part test for figuring out when an interpretation has the force of law:

Congress has delegated to an agency the general authority to make rules carrying the force of law; and
The agency interpretation for which deference is sought was promulgated in exercise of that authority.

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Mead test 2^nd Prong: What kinds of factors do we look at to determine whether an agency’s statutory interpretation has the “force of law”?

Did the agency make the decisions with “a lawmaking pretense in mind”? (if no, less likely force of law)
Did the agency use notice-and-comment procedures? (if no, less likely force of law)
Does the agency warn against relying on the interpretation? (if yes, less likely force of law)
Is it the kind of decision that is “churned out” at a high rate? (if yes, less likely force of law)

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Review of Judicial Oversight of Agency Determinations

“Chevron Step 0” (Mead): Did Congress give the agency lawmaking authority?

If yes, then continue to Chevron Step 1
If Congress did not intend the agency action to carry the force of law, then weaker deference standards apply

Chevron Step 1: Did Congress speak to this issue in particular?

If yes, then statutory language applies
If no, then Congress expected agency to fill in the ambiguities

Chevron Step 2: Was agency’s statutory interpretation permissible?

The answer to this is usually “Yes”
Similar to Arbitrary & Capricious test

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But, the Court says that SOME deference should still be given to interpretations that lack the “force of law”�

“The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

-Skidmore v. Swift

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Skidmore v. Swift & Co.

(What kind of deference do agencies’ statutory interpretations get when they lack the force of law?)

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Skidmore v. Swift & Co.

How much weight should be given to the agency interpretation? Depends on factors including:

Thoroughness of consideration
Validity of its reasoning
Consistency with other pronouncements

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How much deference?

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Christensen v. Harris County

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Statutory Language:�FLSA §207(o)(5)

(5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency—

(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and

(B) who has requested the use of such compensatory time,

shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.

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What kind of deference does the Court give this opinion letter?

“Entitled to respect” to the extent that it has the “power to persuade”

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Why doesn’t SCOTUS use Chevron deference here?

Regulation here is not ambiguous, it is plainly permissive.
Interpretation letter doesn’t create a de facto new regulation
“Force of law” test = Skidmore deference for interpretation letter

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Christensen Takeaway

Interpretations contained in formats such as opinion letters are “entitled to respect”… but only to the extent that those interpretations have the “power to persuade”

Here, the agency’s interpretation of the statute is “unpersuasive”