Federal Administrative Law

This guide gives a brief introduction on how to locate and use sources of federal administrative law.

Introduction

There are basically four strands of deference used by the courts when analyzing adminstrative interpretations:

  • the arbitrary-and-capricious standard, applicable to so-called legislative regulations;
  • the Chevron standard, applicable to certain other types of agency interpretations;
  • the Skidmore standard, applicable where the agency interpretation is subject to neither the arbitrary-and-capricious standard nor the Chevron standard; and
  • the Auer standard, applicable where the agency’s interpretation, as distinguished from the statute, is ambiguous.

There is a very concise overview of deference to adminstrative interpretations in Chapter 1 of the Circular 230 Handbook available on Bloomberg.

Chevron Deference

The United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), held that when a legislative delegation to an agency on a particular question is implicit rather than explicit, a court may not substitute its own construction of the statutory provision for a reasonable interpretation made by the administrator of the agency. If the statute is silent or ambiguous with respect to the specific issue, the Court said, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Quote from: 3 A.L.R. Fed. 2d 25

Skidmore Respect

In Mead, the Court held that any interpretation not eligible for the Chevron standard is to be analyzed under Skidmore v. Swift & Co.  Under the Skidmore standard, the court must determine whether the interpretation is persuasive.  In making this judgment, the court must consider a number of factors:

  1. Whether the agency has consistently maintained its position

  2. How thoroughly the agency considered its position

  3. Whether the agency’s reasoning is valid

  4. Whether other factors make the interpretation persuasive.

Quote from: The Circular 230 Deskbook

Heafey Law Library Research Team