“Deference” is too Confusing – Let’s Call Them “Chevron Space” and “Skidmore Weight”

Abstract

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation. " Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference. " Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight. " "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints—that is, its allocated authority. "Skidmore weight" addresses the possibility that an agency's view on a given statutory question may in itself warrant the respect of judges who are themselves unmistakably responsible for deciding the question of statutory meaning. "Skidmore weight" has an underappreciated pedigree. For almost two centuries, American courts have given agency views of statutory meaning considerable weight in deciding for themselves issues of statutory meaning. "Chevron space" reflects our more recent understanding and acceptance that Congress may validly confer on executive agencies the authority to act with the force of law, so long as the legality of their action within the boundaries of their authority can be judicially assured. Within its congressionally authorized space, the agency is the prime actor. From a court's independent conclusion that Congress has delegated authority to an agency—a conclusion that may even be informed by Skidmore weight given to the agency's own understandings of its authority—it follows ineluctably that the reviewing court is to act, not as decider, but as overseer