Twenty-three years after being resurrected by Mead, Skidmore is seemingly resurgent. As commentators on this blog have noted, the Loper Bright Court’s express references to Skidmore suggest—aside from situations where the “best reading” of a statute is a delegation of interpretive authority—that Skidmore will be the primary test used to evaluate agency statutory interpretation going forward. 

But is Skidmore really any different than de novo review? Scholars and justices alike have wondered for decades. Two of Skidmore’s three factors are “the thoroughness . . . [of the agency’s] consideration” and “the validity of [an agency’s] reasoning.” But all interpretations are persuasive insofar as their reasoning is thorough and valid. As Justice Kagan remarked in the Loper Bright oral argument, “Skidmore means, if we think you’re right, we’ll tell you you’re right.” 

If any Skidmore factor is to operate as a “plus” factor for agencies beyond the respect accorded to any party with thorough and valid reasoning, it needs to be the longstandingness of the agency interpretation, its “consistency with earlier and later pronouncements.” But, as Daniel Deacon has noted, this could pose a problem for textualists. Textualists prioritize semantic context rather than policy context when interpreting statutes and seek to give legal effect to the “best reading” of a statute as understood by an objective ordinary reader. 

Can we square textualism and a commitment to ordinary meaning with a doctrine that emphasizes the history and continuity of post-enactment agency interpretation? One possible way is to look at the role agencies play in establishing ordinary meaning in certain linguistically underdetermined contexts by providing a coordinating point for ordinary meaning to develop. 

Textualists recognize that words do not have “internal” meanings but that semantic meaning lies in the usage of an interpretive community. Thus, ordinary meaning “is an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context.” As Locke put it in Book III, Chapter 2 of An Essay Concerning Human Understanding, there is no “natural connection . . . between particular articulate sounds and certain ideas, for then there would be but one language amongst all men; but [words came to be used as signs of ideas] by a voluntary imposition, whereby such a word is made arbitrarily the mark of such an idea.”

It is possible to have situations where there is little discernable usage or consensus in a linguistic community as to what a particular statute means in a particular context. In these instances, an agency may be the only, or at least the preferred, institutional actor capable of supplying a coordinating point for the establishment of ordinary meaning as it pertains to a particular underdetermined provision. As I’ll explain, this is conceptually distinct from liquidation, as articulated by Professor Baude. 

Consider the case of Baylor County Hospital District v. Price. That case was concerned with the meaning of the terms “secondary roads” and “primary roads” in a statute relating to Medicare reimbursement for hospitals. “[C]ritical access hospitals” received better reimbursement rates from the government, and the statute defined “critical access hospitals” with reference to “the type of roads that connect the facility to the next nearest hospital.” “Whether a facility can be a critical access hospital turns in part on its location ‘in areas with only secondary roads available.’” Judge Edith Jones of the Fifth Circuit—a textualist—found the terms to be ambiguous. Congress had not defined “secondary roads” or “primary roads.” And Judge Jones found dictionary definitions to be of “little help”; Webster’s Third New International Dictionary (1961) stated that a “‘secondary road’ is ‘a road not of primary importance whose classification and maintenance vary according to township, county, and state regulations.’” The Department of Health and Human Services (DHHS) had defined “primary roads” and “secondary roads” in a “State Operations Manual,” and Judge Jones found DHHS’s interpretation persuasive and reasonable under Skidmore. 

It is worth stepping back and asking: But for DHHS’s interpretation, who could have supplied meaning to terms as vacuous as “primary roads” and “secondary roads?” Setting aside questions of institutional competence, a court could have established a legal meaning had the provision been litigated prior to the establishment of a definition by DHHS. However, absent judicial definition, the agency was really the only actor capable of establishing a definition around which custom and usage could take hold. Said another way, the agency was the one to supply what would become ordinary meaning in this instance. Building on the textualist recognition that ordinary meaning is empirical rather than metaphysical, textualists can reconcile ordinary meaning and agency practice by understanding agency practice as interstitially supplying meaning where no other actor is capable of doing so. 

How is this different than a statutory version of liquidation? The differences are both practical and conceptual. Practically, both liquidation and the theory articulated above depend on the presence of textual indeterminacy. But Madison’s theory of liquidation, as explained by Professor Baude, relies on public deliberation and sanction to settle an issue. Here, in contrast, the agency may, in some situations, be the only institutional actor capable of supplying meaning that regulated parties can coordinate around, although it may engage and deliberate with them in the course of formulating a definition (indeed, Skidmore encourages this). Conceptually, Baude frames liquidation as a methodological compromise or exception to a broader theory like originalism and grounds liquidation’s legitimacy in historical practice. My account of Skidmore offers a way to conceptually understand post-statutory enactment practice within an ordinary-meaning framework and does not rely on historical pedigree for its legitimacy (although the theory is buttressed by the historical precedents of liquidation, contemporaneous construction, and customary construction). 

This view of Skidmore does not entail agency exceptionalism. There are instances where an agency’s view of statutory meaning becomes less relevant. Frequently, custom and ordinary usage will predate statutory enactment or occur before an agency takes a view on statutory meaning. For example, an industry might develop terms of art or a shared vocabulary through decentralized usage or through a trade association. Situations where an agency is uniquely well-suited to serve as a coordinating point for statutory meaning—and thus receive a true “plus” factor—will be relatively limited. 

There are a few problems that need to be worked out to arrive at a textualist basis for Skidmore. First, it is difficult to reconcile post-enactment practice with the traditional notion of linguistic fixity in textualism. One could point to historical exceptions to fixity, such as Baude’s liquidation or Professor Bamzai’s contemporaneous and customary exposition. But then the theory ceases to be purely linguistic. Second, does this notion of Skidmore collapse into implied delegations and Chevron-lite? I would argue no, as this theory does not rely on a presumption about congressional intent, is extremely limited in its domain, and is not binding on courts. However, some of the people I’ve discussed these ideas with are skeptical that there can be a rigorous intermediate position between Chevron’s theory of implied delegations and the traditional textualist view that meaning is fully determined at the time of enactment. I will be attempting to work through and explore some of these tensions more comprehensively in the coming months.

Navid Kiassat is a second-year law student at Yale Law School.