Guide to Deference for Agency Legal Conclusions
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Has Congress delegated the authority to make rules, and is the agency making a rule or adjudicating in a way that has the force of law? (Christensen/Mead)
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YES
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Is the agency interpreting its organic statute?
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YES
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Is it interpreting the scope of its own regulatory powers?
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NO
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Is Congressional intent clear? (Chevron step 1) (considering things beyond just plain language of statute - Zuni and Dole)
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YES
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Review agency action based on Congressional intent
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NO
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NO
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YES
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NO
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Skidmore deference (defer as long as opinion is deserving of deference)
Includes interpretive rules, even if NAC procedure used
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If interpreting its own regulations, gets Auer deference as long as it is not clearly erroneous, reflects fair and consistent judgment, and is not a post hoc rationalization (Christopher v Smithkline Beecham)
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Consider entire context of Act, not statute in isolation (FDA v Brown & Williamson Tobacco)
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Is the agency's interpretation reasonable? (Chevron step 2)
(keep in mind that an agency can change its mind as long as court hasn't held that a certain statutory construction follows from the unambiguous statutory construction - National Cable)
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YES
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Defer to agency
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NO
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If interpreting court decisions construing statutes (even if agency gets deference to interpret the statute that was the subject of the case), Constitution, contracts/deeds/other legal documents...NO DEFERENCE!
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Don't defer to agency
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Deference to Agency Legal Interpretation
