In a recent post regarding differences between Kisor and Chevron over at Yale JREG's Notice and Comment blog, I explained that while Kisor instructs courts to follow Skidmore when Auer deference is inappropriate, by the time a court goes through the very involved analysis Kisor requires before a court can make that determination, there might not be much of anything left to do under Skidmore. In response, Jack Townsend noted wondered "just how much 'deference' is in Skidmore." He cited certain "anecdotal evidence of where the current Supreme Court justices are on Skidmore," explaining that
[I]n oral argument in Kisor v. Willkie (Sup. Ct. 18-15), Justice Kavanaugh said: “Skidmore deference is really no deference because it –it applies only when it’s persuasive, which is true of any argument.” (Transcript of Oral Argument dated 3/27/19, pp. 15-16.) Justice Roberts then chimed in: “Skidmore deference, which I find hard to get my hands around too –I think I know more what a moiety is than I know what Skidmore deference is.” (Transcript pp. 26-27.) The reference to moiety was to an earlier Justice Breyer’s hyperbolic comment about FDA expertise in guidance as follows: “I mean, they give an example, one of them, where the Court deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group. Do you know how much I know about that?” (Transcript p. 11.)
I had a lot to see in reply to Jack's comment and thought I would share it here for anyone interested. I will have much more to say on the interplay between Kisor and Skidmore in the coming weeks, but this will probably give you a sense of where my thinking is headed:
Jack, you raise a really great point. Perhaps Skidmore deference is really no deference at all. If that’s right, though, it only underscores the importance of my point in the post about how hard it is to see any daylight between Skidmore and a rigorous application of the Kisor framework. In other words, if , on close inspection, the Kisor standard actually just collapses into Skidmore, and if Skidmore is really no deference at all, then what part of Auer did Kisor really save? I spelled this point out in greater detail here if you’re interested: https://www.admin.law/kisor-rant-1-part-1/. I also made a similar point regarding Chevron and SAS v. IANCU here: https://www.admin.law/did-sas-institute-v-iancu-overrule-chevron-after-all/. And Professor Aditya Bamzai recently discussed all of this far more elegantly than I ever could here: https://harvardlawreview.org/wp-content/uploads/2019/11/164-199_Online.pdf.
So, yes, you’re quite right that the debate about Skidmore and whether it ever does much work in judicial review of agency action has taken on renewed importance in light of Kisor. It’s an issue I’m very interested in even if this particular post, due to its narrow focus, didn’t dig into very deeply.
One final point: you mention moieties. I found Justice Kagan’s discussion of moieties in Kisor frustrating. On one hand, she cites Justice Breyer’s moieties hypothetical as an example of where an agency’s substantive expertise justifies Auer deference, explaining that “[i]f you are a judge, you probably have no idea of what the FDA’s [moiety] rule means” and asking later whether there is “anything to be said for courts all over the country trying to figure out what makes for a new active moiety?” On the other hand, in a portion of the opinion that commanded a majority of the Justices, she seems to take a different view, emphasizing that “a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read.” She explains that “[a]gency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved.”
So which is it? Is there nothing to be said for courts around the country addressing the meaning of complex technical rules dealing with things like moieties? Or should courts feel compelled to roll up their sleeves, brew a fresh pot of coffee, and do the sometimes tedious and difficult work required to say what the law is? And lest you think it’s an empty academic question, I’ll point out that in the short time since Kisor was decided lower courts have already had to address the moiety issue. See Braeburn Inc. v. FDA, 389 F. Supp. 3d 1 (D.D.C. July 22, 2019), which I discuss in greater depth here: https://www.admin.law/lower-courts-applying-kisor-ii/.
I hope this was helpful, Jack, and thanks for your comment!
As I said, more to come ....