Skidmore Deference to Gain Importance if Chevron Overturned, Lawyers Say

The Chevron doctrine will almost certainly be overturned soon by the Supreme Court, leaving the path forward for judicial deference unclear, panelists said at Georgetown University Law Center’s 45th Annual International Trade Update.

Those arguing for Chevron’s demise before the court claim that the old Skidmore deference, the ruling standard prior to Chevron, will return to its old position of dominance, one said. But he said that Skidmore is not a doctrine of judicial deference so much as it is a form of judicial respect, which Supreme Court Justice Elena Kagan has called “nothing” at all.

The panel, “Deference Issues in Trade Litigation,” was moderated by Nancy Noonan and included Georgetown law professor Scott Kieff, DOJ senior trial counsel Meen-Geu Oh, environmental lawyer Amanda Berman and Akin Gump partner Pratik Shah. The panelists discussed the likely upcoming end of the Chevron era, as well as the various standards of judicial deference used in cases regarding Section 232 and 201 cases, the Administrative Procedures Act and Harmonized Tariff Schedule classifications.

Should Chevron be overturned, Skidmore deference will likely remain as some sort of guide for judges, Oh said. Skidmore holds that a court will respect an agency’s interpretation of a law in proportion to the interpretation’s persuasive value, he said. In particular, he said, the court will consider three factors: the agency’s expertise regarding the subject at hand, the completeness of the agency’s explanation and a basket “other” factor.

But because it isn’t deference -- just “respect” -- the standard essentially means whatever a judge wants it to mean, he said. As a result, it has received some criticism, especially from the liberal justices on the Supreme Court.

Meanwhile, the Administrative Procedure Act likely won’t provide a new guide for judges in the absence of Chevron, Kieff said. A few cases regarding the act have recently lost “almost immediately” in the Supreme Court, as the the history of the act leaves some question as to its ultimate interpretation, he said.

The panelists also discussed the various standards of judicial deference that apply to other situations.

Berman said her firm had been initially successful in litigation against the reversal of a Section 201 exclusion on solar panels. The U.S. Trade Representative’s office had made the reversal without following any of the standard procedures under the APA, such as requesting comments, she said.

However, when the president himself chose to reverse the exclusion, her firm had “much less luck” because presidential actions get a lot of deference from the courts, she said.

The situation was similar during challenges that ultimately failed against Section 232 tariffs, Oh said. Those challenges were brought citing both the Equal Protection Clause and Commerce’s interpretation of the statute itself; because the deference standard for the Equal Protection Clause claim was a rational basis review, the U.S. Court of Appeals dealt with it in about 10 pages, while it devoted about 50 more to the statutory interpretation claim for which no deference was required, he said.

And Berman said that, in classification cases, although only one step of the two-step process required judicial deference to CBP, there is often a sort of “informal” deference regarding the whole proceeding. She pointed out that more than 80% of classification cases are ultimately won by the U.S., adding that judges aren’t subject matter experts and are often more willing to defer to the agency for that reason, even lacking a formal requirement to do so.

Kieff also touched on the role of a sort of political judicial deference that can result impeachments of justices.

“One of the things that I was always struck by as an ITC Commissioner is what I was supposed to do with a letter from a senator that said, decide her constituents’ way because she wrote me the letter,” he said. “Is that what I should write in my opinion, or should I write in my opinion, because there were facts in the record that made me decide that way?”

An audience member asked what judges will have left to turn to if they no longer have Chevron.

Courts do often make rulings regarding administrative agencies without such standards, Shah said. But he said he agreed with the question

“One of the reasons why Chevron can be very helpful is, at least in technical areas, where, if that's off the table, you're not giving judges a lot of the tools they need to decide these cases,” he said.