Codifying Chevmore
Kent Barnett
This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.
This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional intent as “fictional” or “fraudulent,” arguing that Congress doesn’t think about interpretive primacy, courts don’t really try to divine congressional intent, and courts rely upon overbroad assumptions as to congressional intent.
Dodd-Frank provides the best direct evidence to date as to congressional intent. Dodd-Frank reveals that Congress knows of Chevmore, legislates with it in mind, and acquiesces to its principles. But Dodd-Frank’s preemption provisions—which give an agency rulemaking power subject to Skidmore review—undermine the Supreme Court’s recent suggestion that Congress intends agencies to receive interpretive primacy (via Chevron’s more deferential review) whenever they have rulemaking authority. These insights support earlier precedents that did not treat rulemaking as a talisman. If courts apply these earlier precedents, Chevmore is neither fiction nor fraud.
Dodd-Frank also demonstrates Chevmore codification’s promise for addressing longstanding administrative-law issues. With “Chevron rewards” and “Skidmore penalties,” Congress can—as it did in Dodd-Frank—clarify how agencies must act to obtain Chevron deference, balance “hard look” judicial review with regulatory ossification, and respond to regulatory capture. Chevmore codification can thereby become a key legislative tool for overseeing the administrative state.
