Skidmore deference (persuasiveness test)
What is Skidmore Deference?
Skidmore deference is a principle from U.S. administrative law that governs how courts treat agency interpretations of statutes they administer. When an agency's interpretation is not entitled to the more robust Chevron deference (which applies when Congress has delegated authority to the agency to make rules with the force of law), courts instead apply Skidmore deference, which is a persuasiveness standard.
In simpler terms, under Skidmore, courts give weight to an agency’s interpretation based on how convincing or thorough the agency’s reasoning is, but they are not bound to follow it. The court may consider factors like the agency’s expertise, the thoroughness of its reasoning, consistency with earlier interpretations, and overall validity.
Origins and Key Principles from Skidmore v. Swift & Co. (1944)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) is the foundational case.
Facts: The issue was about overtime compensation under the Fair Labor Standards Act. The Department of Labor issued an opinion letter interpreting the Act.
Holding: The Supreme Court held that the agency's interpretation is not controlling but is entitled to respect according to its persuasiveness.
Principle: Courts should give weight to an agency’s interpretation based on its thoroughness, validity, and consistency.
Key quote:
“The rulings, interpretations and opinions of the Administrator, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”
Important Cases Illustrating Skidmore Deference
1. Skidmore v. Swift & Co., 323 U.S. 134 (1944)
The origin of the doctrine.
Emphasized that agency interpretations without formal rulemaking or adjudication receive respect based on persuasiveness.
The Court refused to give the agency's opinion binding force because Congress had not explicitly delegated that authority.
2. United States v. Mead Corp., 533 U.S. 218 (2001)
Issue: Whether Customs rulings by the U.S. Customs Service are entitled to Chevron deference or only to Skidmore deference.
Holding: Customs rulings did not carry the force of law, so only Skidmore deference applies.
Reasoning: Chevron applies only when Congress has explicitly or implicitly delegated rulemaking authority to the agency, including the power to make rules with the force of law. Here, Customs rulings are more informal and advisory.
Significance: Clarified that informal agency interpretations (like opinion letters, advisory rulings) generally get only Skidmore deference unless Congress clearly intended otherwise.
3. Christensen v. Harris County, 529 U.S. 576 (2000)
Issue: Whether a Department of Labor opinion letter interpreting the Fair Labor Standards Act deserved Chevron or Skidmore deference.
Holding: The opinion letter did not deserve Chevron deference because it was not the product of formal rulemaking or adjudication.
Court ruled: The letter deserved only Skidmore deference and was not persuasive enough to control the case.
Importance: Reinforced that informal agency interpretations receive only Skidmore deference and emphasized that courts must evaluate the persuasiveness of such interpretations.
4. National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005)
This case mainly clarified Chevron deference, but it also reaffirmed that interpretations without force of law receive only Skidmore deference.
The Court emphasized that the difference between Chevron and Skidmore hinges on whether Congress delegated legislative rulemaking authority.
5. Skidmore Deference Applied in Environmental Law:
Skidmore deference has been applied in environmental cases where agency guidance or informal interpretations are reviewed:
Barnhart v. Walton, 535 U.S. 212 (2002):
The Court gave Skidmore deference to an informal agency interpretation because it was persuasive but did not qualify for Chevron.
Key takeaway: When agency interpretations arise outside of formal rulemaking/adjudication but are well-reasoned, consistent, and thorough, courts may defer to them under Skidmore.
6. Mayo Foundation for Medical Education and Research v. United States, 562 U.S. 44 (2011)
The Court deferred to the IRS’s informal interpretation of a tax regulation under Skidmore deference.
Highlighted the factors that make an interpretation persuasive:
thoroughness
validity
consistency
expertise of the agency
Even though Chevron did not apply, the agency’s detailed explanation was influential.
7. Perez v. Mortgage Bankers Ass’n, 575 U.S. 92 (2015)
The case distinguished between informal interpretive rules and legislative rules.
Confirmed that informal interpretations, which do not go through notice-and-comment procedures, are not entitled to Chevron deference but might receive Skidmore deference based on persuasiveness.
Summary of Skidmore Factors
When applying Skidmore deference, courts evaluate:
Thoroughness: How well reasoned and explained is the agency’s interpretation?
Consistency: Is the interpretation consistent with prior agency statements?
Expertise: Does the agency have special expertise in the matter?
Persuasiveness: Is the interpretation convincing and logical?
Formality: Was the interpretation made through formal processes like rulemaking or adjudication?
Comparison with Chevron Deference
| Aspect | Chevron Deference | Skidmore Deference |
|---|---|---|
| Source of authority | Formal delegation by Congress to agency | No formal delegation; informal guidance |
| Binding effect | Agency interpretation is binding if valid | Agency interpretation is persuasive but not binding |
| Process involved | Formal rulemaking or adjudication | Informal opinions, letters, guidance |
| Standard of review | Defer to agency if reasonable interpretation | Consider persuasiveness and expertise |
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