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
|
| |
|
|
|
|
|
|
|
|
|
| |
| |
| |
| |
| |
|
|
|
|
|
|
|
|
|
| |
| |
| |
| |
| |
|
|
|
|
|
|
|
|
|
| |
| |
| |
| |
| |
|
|
|
|
|
|
|
|
|
| |
| |
| |
| |
| |
|
|
|
|
|
|
|
|
|
|
for amusement purposes only. The implicit and explicit opinions expressed here are the author's. SelectSmart.com does not necessarily agree.
