Mead – When to use Chevron vs. Skidmore

1. Mead – When to use Chevron vs. Skidmore • If the agency’s interpretation comes in the form of “force of law” interpretations, courts should use traditional Chevron 2-step approach • Force of law can be found in the “agency’s power to engage in adjudication or notice & comment rulemaking, or by some other comparable indication of congressional intent.” • When the interpretation is in the form of “shadow” law courts should defer only to the extent such interpretations are “entitled to respect” because they have the “power to persuade” • Revival of Skidmore deference

2. Mead – Scalia’s objections • Even informal interpretations can be “authoritative” – e.g., opinion letter from Secretary of Labor • True – but may still miss majority’s concern that formal procedures give more process and public participation • Test is “flabby” and imprecise • Definitely • Rule will cause increase in informal (binding) rulemakings (time consuming, etc.) • Maybe – but that was certainly true of Christensen too • Increased ossification of law because: • Rulemaking interpretations tend to be harder to change than informal • Informal interpretations that are challenged will be set in stone by COURT interpretations not changeable agency interpretations

3. Chevron vs. Mead/Skidmore deference • Chevron • Court gives deference to agency based on its status as an entity who has impliedly been delegated interpretive authority and which has exercised that authority through its delegated means (i.e., rule/order) • Nearly automatic deference if get to Step 2 – “reasonable/permissible” • Mead/Skidmore • Court gives deference to agency interpretation that comes through informal means because the Court thinks that the interpretation is pretty good evidence of a good answer • Skidmore factors – is agency interpretation persuasive? • Is area w/in agency’s expertise? • Is interpretation contemporaneous w/ statute’s enactment? • Is interpretation longstanding or consistent? • Is interpretation supported by reasoned analysis? • What care did agency give to interpretation?

4. Gonzales v. Oregon – the statutes, etc. • Oregon DWDA – has procedures for terminally ill patients to request meds from doctors to end lives. Meds are regulated by federal law. • Controlled Substances Act (21 U.S.C. §829(a)): Controlled substances at issue only available by prescription (Schedule II). • 21 CFR §1306.04: prescriptions must be issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice” • 21 U.S.C. §821: AG may issue rules re “registration” & “control” of controlled substances • 21 U.S.C. §822(a)(2) & 824(a)(4): Drs must register to issue lawful prescriptions. AG may deny/suspend doctor’s registration to dispense Schedule II drugs if “inconsistent with the public interest.” • 5 factors to consider re whether registration is in “public interest” • AG’s interpretative rule (66 Fed. Reg. 56608 (2001)): assisting suicide is not a legitimate medical purpose within the meaning of 21 § CFR 1306.04 and may render dr’s registration inconsistent w/ public interest under 21 USC §824(a)(4)

5. Gonzales v. Oregon - Seminole Rock/Auer deference • A.G. claims court should defer to interpretive rule (66 Fed. Reg. 56608) because it is interpreting his own regulation (21 CFR §1306.04) • Seminole Rock/Auer deference: court should defer to agency interpretation of its own ambiguous regulations unless it is clearly erroneous or inconsistent with the regulation. • Why would a court give such deference to agency interpretations of their own regulations?

6. Gonzales v. Oregon – majority’s application of Seminole Rock/Auer deference • Why doesn’t the majority apply Auer deference here? • “[T]he existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” • What is the majority worried about if it doesn’t distinguish between parroting and non-parroting regulations? • Problems with the majority’s approach?

7. BP Oil spill litigation re drilling moratorium – good example of parroting regulation? • Secretary of the Interior may prescribe regulations “for the suspension or temporary prohibition of any operation or activity, including production, pursuant to any lease or permit . . . if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment. • 43 USC §1334(a)(1) • “When activities pose a threat of serious, irreparable, or immediate harm or damage. This would include a threat to life (including fish and other aquatic life), property, any mineral deposit, or the marine, coastal or human environment.” • 30 C.F.R. §250.172(b).

8. Gonzales & Chevron Step 0 • A.G.’s interpretive rule can’t automatically get Chevron deference because it doesn’t fall into a “safe harbor” interpretive form – it’s an interpretive rule (not a binding rule or adjudication). • But it could still gain Chevron deference if Congress intended rule to have the binding force of law (Mead). • How did the majority answer this question? Why? • How did Justice Scalia? • What concerns push each opinion? What approach do they take? Who has the better answer?

9. Chevron’s Bottom Line • Chevron is known as a deferential standard because it requires courts to defer to “reasonable” agency interpretations of statutes that they administer • That deference at step 2 of Chevron, however, has caused fights to erupt at the other steps: • Step 0 – is Chevron deference inapplicable because the agency’s interpretation takes a form that does not deserve automatic deference? • Step 1 – is the statute really ambiguous or does it clearly mandate that the agency act a certain way? • Bottom line – if Chevron applies, it is deferential but whether it applies is not automatic