Voigt Deference: Deferring to a State Agency’s Interpretation of a Federal Regulation

Abstract

A federal court will sometimes defer to a federal agency’s interpretation of a federal regulation. But conventional wisdom suggests that federal courts review with fresh eyes state agencies’ interpretations of the same. This Essay suggests a different approach—one called Voigt deference named after a recent Eighth Circuit decision—and one that federal courts should embrace so long as the practice of deferring to a federal agency’s interpretation of regulations endures. Rather than review anew a state agency’s interpretation of a federal regulation, Voigt deference would have a federal court review the state agency’s interpretation under Skidmore deference. In other words, federal courts owe a state agency’s interpretation of a federal regulation a “duty of attention.” Pursuant to that duty, federal courts should consider the reasoned views of the state agency tasked with implementing the federal regulation. Voigt deference leverages localized-comparative advantage, encourages experimentation, enhances state buy-in, and promotes the goals of cooperative federalism, while also minimizing concerns about overzealous judicial deference to the interpretive positions of agencies generally.