A 'New' Counter-Marbury: Reconciling Skidmore Deference and Agency Interpretive Freedom

52 Pages Posted: 9 Dec 2005

See all articles by Richard W. Murphy

Richard W. Murphy

Texas Tech University School of Law


In National Cable & Telecomm. Ass'n. v. Brand X Internet Serv., 125 S. Ct. 2688 (2005), the Supreme Court held that a court's earlier construction of a statute should trump an agency's later construction otherwise eligible for Chevron deference "only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Dissenting, Justice Scalia remarked that the majority's new approach to the relation of stare decisis to Chevron created "a wonderful new world … full of promise for administrative law professors in need of tenure articles …." He also chided that "[f]urther de-ossification may already be on the way, as the Court has hinted" in Edelman v. Lynchburg College, 535 U.S. 106 (2002), "that an agency construction unworthy of Chevron deference may be able to trump one of our statutory-construction holdings."

This (ahem, tenure) Article explored just this Edelman possibility in a pre-Brand X effort to clarify agency power to trump judicial statutory constructions. Its key move was to reexamine the nature of Skidmore deference in light of lessons drawn from the hard-look doctrine. Measured respect for agency analysis is an integral part of a court's Skidmore construction problem. It follows that an agency - by changing its analysis of a statute - alters the question confronting a court called upon to construe it. To illustrate, suppose that in case one a court imposes its Skidmore construction - call it X - on some vague bit of language in a statute that an agency implements. As part of this process, the court has to consider whether it finds the agency's construction of the same language "persuasive." After case one ends, the agency adopts construction Y along with a new supporting analysis; this new construction's legality is litigated before the court in case two. If this later construction is subject to Skidmore deference, then the court should give measured respect to the agency's new analysis ' thus requiring it to confront a different statutory construction problem than in case one. To put the matter in "hard look" language, the agency's new analysis constitutes a new "relevant factor" for the court to consider as it resolves statutory ambiguity. As stare decisis only applies to previously decided issues, due to this difference, a court should not reject an agency's new construction Y merely because it differs from the court's Skidmore construction X. Note that, on this view, a new agency construction need not be Chevron-eligible to trump an earlier judicial construction.

Keywords: Chevron, Skidmore, Brand X, Stare Decisis, Deference

Suggested Citation

Murphy, Richard Wyman, A 'New' Counter-Marbury: Reconciling Skidmore Deference and Agency Interpretive Freedom. Administrative Law Review, Vol. 56, No. 1, 2004; William Mitchell Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=869230

Richard Wyman Murphy (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)

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