“In Search of Skidmore”

Important analysis by Peter Strauss:

In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views has simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief Justice Roberts’ dissent). The centuries-old proposition Justice Jackson captured in Skidmore v. Swift & Co. receives passing mention only in the solitary opinion of Justice Breyer.

Perhaps as remarkable is that the statutory command that agency conclusion must be reasonable has disappeared alongside Skidmore. “Permissible” is now the judicially enforceable limit, if this opinion is to be believed.

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