I’ve never been a fan of Chevron.  In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two.  Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not.  As a result, I prefer the Skidmore approach which grants weight to the agency’s interpretation—but only when it’s appropriate to do so.  

Now that we’ve plunged back in a world of Skidmore deference, I’d like to suggest a structure for applying Skidmore to the particular issue of textual interpretation before the court (meaning interpretation of regulations as well as statutes).  All of us law professors are going through the painful process of rethinking our syllabus and figuring out what to do about Chevron now that its corpse is lying on the kitchen floor. We’re going to have to teach Skidmore big time.  I hope this structure suggests a way that we might do that.  You can put the interpretive structure on some PPT slides and ask class members to apply the various factors to the interpretive issue in question. 

California never accepted Chevron and has a well-developed Skidmore-like doctrine that goes by the name of Yamaha deference. It’s based on Yamaha Corp. v. State Bd. of Equalization, 19 Cal.4^th 1 (1998), which in turn relied on my earlier work. In my opinion, the Yamaha methodology works smoothly and well in determining how much weight (if any) to give to agency interpretation of both statutes and regulations.  Incidentally, California shows no signs of adopting the Major Questions Doctrine and applies the same analysis whether the question is major or minor.  And I should mention that the analysis offered here is pretty similar to Justice Kagan’s opinion in Kisor v. Willkie about how to interpret ambiguous language in regulations.

First, the court must determine whether the disputed text is genuinely ambiguous, meaning that after applying conventional tools of statutory interpretation, the court is still uncertain of the correct meaning of the text.  This process is similar to Chevron step one. Of course, different judges handle this analysis differently (for example, whether they’re willing to consult legislative history, or whether they are textualists or purposivists or whatever).  If the court feels confident that the statutory text isn’t ambiguous, the court adopts that interpretation and the case is over.  

Next, the court must determine whether there has been a legislative decision to delegate interpretive power to the agency.  If so, the agency interpretation must be upheld if it isn’t arbitrary and capricious.  Sometimes such delegations are explicit (something like “working time as defined by the agency”). Sometimes, they’re implicit because the legislature used broad and general language or there is some other indication that the legislature wanted to give the agency primary responsibility in attributing meaning to the text. Some agencies have enjoyed a tradition of deferential judicial review of interpretive issues, and that authority will remain relevant. 

If the court isn’t sure how to interpret the text and if interpretive power has not been delegated to the agency, Skidmore/Yamaha requires the court (or the professor) to determine how much weight to accord to a particular agency interpretation of a statute or a prior regulation.  This determination is situational and context-specific.  The primary contribution of this post is to point out that there are two different types of relevant factors that determine whether to give weight to the agency interpretation and deciding how much weight to give.  They should be analyzed separately. 

First is the question of whether the court or the agency has a comparative advantage in interpreting the particular text in dispute.  And second is determining whether the interpretation is likely to be correct. 

As to the first factor, agencies have a comparative interpretive advantage when agency expertise, experience, and technical knowledge are relevant.  Agencies have a comparative advantage when the disputed text is part of a complex and technical statute or regulation or entwined with issues of enforcement and policy.  Judges often feel out of their depth when confronted by these kinds of interpretive issues. And agencies have a comparative advantage in interpreting their own regulations.  But if the text is nontechnical and the dispute involves the sort of language that courts routinely interpret, agency interpretive expertise isn’t particularly helpful and the court has a comparative interpretive advantage.  An example might be the familiar Dominion case in which the court had to decide the meaning of the term “public hearing” which was critical in determining whether the APA adjudication provisions applied.  EPA had no comparative advantage in interpreting the meaning of that text.  Many California cases have determined that particular interpretive issues are well within the judicial wheelhouse and have accorded the agency’s interpretation little or no deference. 

Second are factors that suggest that the agency interpretation is probably correct.  These include:

• whether the agency has employed the interpretation consistently or whether it is newly adopted or whether the agency has vacillated on the issue; 
• whether interpretation was adopted contemporaneously with enactment of the statute (since agency staff were probably involved in the legislative process);
• whether the interpretation was adopted after a public notice and comment procedure or a trial-type adjudication, as opposed to an interpretation contained in a letter responding to a request for advice or one that appears for the first time in the agency’s brief; 
• the level of the agency that generated the interpretation (for example, an interpretation by senior staff is more likely to be correct than one issued by a low-level official);
• the quality of the agency’s statutory analysis (meaning that it appears in a detailed and carefully researched and considered memorandum as opposed to a quick and conclusory answer in an advice letter)

This structure is pretty easy to understand and is applied every day by California courts without apparent difficulty.  Of course, there’s probably less active resistance to the regulatory process and less political polarization in the California judiciary than the federal one, so things might not go so smoothly in federal courts. You’ll find detailed analysis of California authority on interpretive delegation and application of the relevant interpretive factors in Chapter 17 of my co-authored treatise “Administrative Law: California Practice Guide” (available on Westlaw).

I hope that this structure will be helpful to administrative law instructors and to litigants and judges as all of us explore the brave new Loper Bright world. 

Michael Asimow is Professor of Law Emeritus, UCLA School of Law, and Dean’s Executive Professor of Law, Santa Clara Law School.