As Chris Walker has explained, he and Mike Kagan recently filed this amicus brief urging the Ninth Circuit to rehear en banc a case that involves a question of exceptional importance: how to reconcile Skidmore “respect” for an agency’s interpretation with the central holding of Loper Bright. The amicus brief argues that, in “the guise of giving Skidmore ‘respect’ to a precedential statutory-interpretation decision of the Board of Immigration Appeals (“BIA”),” the panel decision in Lopez v. Garland “effectively turns Loper Bright ‘respect’ into a kind of deference that seems indistinguishable from Chevron.”

While I agree with one of the amicus brief’s major premises, my takeaway is quite different. I see the Ninth Circuit panel decision in Lopez as an excellent model for operationalizing Skidmore “respect” after Loper Bright.

I’ll begin with the shared major premise. The amicus brief argues that, after Loper Bright, it remains appropriate for courts to consider agency interpretations as “extrinsic evidence” of the meaning of statutory terms. Quoting Felix Frankfurter, the amicus brief explains that, since 1789, federal statutes often have “not only been sponsored but actually drafted by the appropriate executive agency.” Indeed, the amicus brief notes Chris Walker’s recent empirical research showing that “federal agencies are substantially involved in the legislative drafting process and often play a direct role in drafting and reviewing legislative actions that may impact the agency.” The amicus brief thus harmonizes Skidmore “respect” with the independent judgment that Loper Bright contemplates when a court interprets a statute. Quoting Loper Bright, the amicus brief explains that “an agency may have special insight into the context, structure, and design behind Congress’s enactment of the legislation, particularly where the agency’s view is offered ‘contemporaneously with the statute at issue’ and ‘remain[s] consistent over time.’”

These insights seem exactly right. Where I part company with the amicus brief is over the level of generality at which the “consistency” of an agency’s interpretation is determined.

In the Ninth Circuit case, the central contested issue is whether the offenses for which Lopez had been convicted – several counts of petty larceny under the Reno Municipal Code – qualify as “crimes involving moral turpitude” within the meaning of the Immigration and Nationality Act.  If so, those crimes make Lopez removable from the United States. Applying Loper Bright’s reasoning, the panel concluded that the BIA’s 2016 decision in Diaz-Lizarraga – which concluded that a theft offense constitutes a crime of moral turpitude if it includes an intent to deprive “either permanently or under circumstances where the owner’s property rights are substantially eroded” – is entitled to Skidmore “respect.” The panel was “mindful that Diaz-Lizarraga overruled long-standing BIA precedent that created a sharp distinction between permanent and temporary property deprivations.” But the panel emphasized the BIA’s explanation that its “revised interpretation is nonetheless consistent with the agency’s longstanding distinction . . . between reprehensible and non-reprehensible criminal conduct.”  The panel explained: “Surveying contemporary state law in all fifty states,” “the BIA concluded that criminal law had since evolved to “recognize that many temporary takings are as culpable as permanent ones.” Accordingly, “the BIA decided to revise its interpretation to track the ‘mainstream, contemporary understanding of theft’ reflected in the Model Penal Code.”

The panel’s nuanced understanding of what counts as a “consistent” agency interpretation strikes me as true to the major premise of the Walker/Kagan amicus brief. To paraphrase the Chief Justice in Rahimi, the requirement that an agency interpretation be “consistent” to warrant Skidmore “respect” does not mean that subsidiary agency positions must be “trapped in amber.” The panel rightly concluded that Diaz-Lizarraga warrants Skidmore “respect” because it is consistent with the BIA’s longstanding approach to identifying crimes of moral turpitude, which depends on the reprehensibility of the conduct. As the panel emphasized: “Diaz-Lizarraga retains this core distinction, expressly affirming that it is still ‘appropriate to distinguish between substantial and de minimis takings when evaluating whether theft offenses involve moral turpitude.’” The panel’s approach provides a helpful framework for other courts to use when deciding if Skidmore “respect” is due after Loper Bright.

Alisa Klein is an Associate Professor at Wilmington University School of Law who formerly worked as a career appellate litigator for the Department of Justice.