LawDeference to Agency Legal Interpretation
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Guide to Deference for Agency Legal Conclusions

               
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)
YES
Is the agency interpreting its organic statute?
YES
Is it interpreting the scope of its own regulatory powers?
NO
Is Congressional intent clear? (Chevron step 1) (considering things beyond just plain language of statute - Zuni and Dole)
YES
Review agency action based on Congressional intent

NO


NO


YES


NO


Skidmore deference (defer as long as opinion is deserving of deference) Includes interpretive rules, even if NAC procedure used
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)
Consider entire context of Act, not statute in isolation (FDA v Brown & Williamson Tobacco)
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)
YES
Defer to agency







NO


 
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!
 
Don't defer to agency