Skidmore/Mead/Chevron Steps 0,1, and 2 help Forum

[the lantern]

I have a decent idea of how Skidmore "some deference," Mead (did Congress intend Chevron deference), and Chevron steps 0, 1, and 2 all fit together, but I'm just not fully grasping what this all means. Does anyone know of any supplement or online article that may help clarify things?

I clearly understand Chevron steps 1 and 2. Chevron step 0 seems simple enough: if the interpretation was made using formal adjudication, notice and comment rulemaking, or "sometimes in less formal procedures", the courts should apply Chevron steps 1 and 2. It is my understanding "sometimes in less formal procedures" means the court must then determine whether or not this informal action should be afforded any deference at all. Does the court use the factors in Skidmore to figure this out (thoroughness of consideration, validity of reasoning, consistency over time, “and all those factors which give it power to persuade, if lacking power to control.”)? If I am correct, one would then analyze the informal action with these four factors in mind. If these four factors lead to the conclusion that an agency action should be given "some deference" under Skidmore, does that mean it should then proceed to Chevron to see if it is a permissible interpretation or is it a different form of deference altogether (if there is a different form of deference altogether, what does "some deference" really mean)? What happens if the informal action doesn't meet the requirements for "some deference" under Skidmore after an analysis of the aforementioned four elements? I know that the remedy for an impermissible interpretation according to Chevron step 2 is remand so that the agency can rework the rule, but what does the court do if it finds that a particular agency action should be afforded no deference at all?

I'm going to take a look at Werhan's Principles of Administrative Law tomorrow, but any insight on other helpful texts or just general help would be great


So sorry if this is unclear. I understand each of these things on their own, but putting them all together is really giving me problems.

[Renzo]

The "step zero" introduced in Mead is whether Chevron applies at all, and is assessed as you describe it. If it fails, and Chevron does not apply, then the agency gets Skidmore deference. Skidmore is a sliding scale, so if there was no processes and the decision was completely arbitrary, there is no deference. But, if all the factors are present, it might get quite a bit of deference. How much deference is "some" will be up to the court to decide on the facts of each case--and this is Scalia's big complaint in the Mead dissent.

[Anonymous Loser]

If these four factors lead to the conclusion that an agency action should be given "some deference" under Skidmore, does that mean it should then proceed to Chevron to see if it is a permissible interpretation or is it a different form of deference altogether (if there is a different form of deference altogether, what does "some deference" really mean)?

Seems like you are getting the cart ahead of the horse, and going straight to Step 2, bypassing Step 0 here. Consider the example of an informal adjudication: the Chevron analysis likely never progresses past Step 0, and in that situation, the court uses Skidmore exactly like Renzo suggested above, and that's the end of the story. Step 0 is the first step for a reason: you are asking if the default rule of Skidmore applies, or if the Chevron approach is applicable. Once you've made this decision, you stick with it: you are never going to have a situation where you apply Skidmore, and then fool around with Chevron Steps 1 & 2 as well.

[the lantern]

Thank you both for the clarification. Since we covered Chevron at the very beginning of the semester and State Farm/Mead/Skidmore at the very end, I was really confused on how they all fit together. This furthers my understanding significantly.

[npe]

Thank you both for the clarification. Since we covered Chevron at the very beginning of the semester and State Farm/Mead/Skidmore at the very end, I was really confused on how they all fit together. This furthers my understanding significantly.

Do professors do this just to make things more confusing? We did everything in a logical order in my Advanced Crim Pro class, except we did sentencing right in the middle for no discernible reason.

[BobSacamano]

Don't forget Hearst!

I had my Admin Law final today. Yeah, that class was... fun.

[the lantern]

btw i killed this exam, thanks bros

[twelveoaks]

Yea, I know this thread is old as hell, but studying for finals and trying to figure out when to apply Skidmore as well. The above posters seemed to say that if the agency action is not formal adjudication, notice and comment rulemaking, or certain exceptional cases where Chevron applies, then use Skidmore. In other words, Skidmore applies when the agency action lacks "the force of law."

However, my question is, do we still look at the ambiguity of the statute at all under Skidmore? If the statute is ambiguous, do we defer more to the agency under Skidmore as we would under Chevron? The Skidmore "persuasiveness" factors like consistency and thoroughness of consideration don't seem on face to include anything about the enabling legislative act, only the agency's interpretation of the act itself. If the act is not ambiguous, do we even give the agency Skidmore deference?

And what if the very question of whether Congress intended to delegate the agency the power to make rules "with the force of law" (Chevron step 0) is itself ambiguous? What then? Maybe this never happens?