The Revival of Skidmore v. Swift: Judicial Deference to Agency Interpretations after EEOC v. Aramco

Abstract

Although Skidmore v. Swift & Co.1 was decided almost fifty years ago, it remains the authoritative statement on the role of interpretive rules in administrative law. As the courts increasingly defer to agency interpretations of statutes, Skidmore becomes even more meaningful in the scope of review area. Skidmore established a doctrine of cautious deference with regard to agency interpretations. In contrast, Chevron U.S.A. Inc. v. National Resources Defense Council, Inc.' mandated deference to any reasonable agency interpretation. As agencies may exercise a variety of powers, courts evaluating agency rules have available to them both the Skidmore and Chevron deference principles. The two principles are distinct, and properly apply to discrete situations. The courts, however, have intertwined the Skidmore and the Chevron principles, applying the Chevron doctrine of extreme deference to Skidmore situations. This has led to the mistaken assumption that Chevron has completely eviscerated the significance of Skidmore. In order to combat the swallowing of the Skidmore decision by the Chevron tiger, the courts must recognize and preserve the fundamental differences between the Skidmore and the Chevron deference principles. The Supreme Court did just that last year in Equal Employment Opportunity Commission v. Arabian American Oil Co. (Aramco)3 The intricate web of administrative agencies in the federal system is often referred to as the Fourth Branch of govern-