A phrase is born…

It’s well established that an agency’s interpretive statements are entitled only to Skidmore deference. And it’s well established that courts look to things like consistency of interpretation and implementation in deciding how much deference to give an agency’s interpretation under Skidmore.

(Of course, I’ve always found Skidmore deference to be odd. It seems to me that deference only to the degree that an agency’s interpretation has the “power to persuade” isn’t really deference at all. Either the agency’s interpretation is persuasive in light of the language of the enabling act or it isn’t. I could see why deference to the agency would be appropriate in the rare case where the agency’s interpretation and an alternative interpretation are equally persuasive, but I imagine that rarely happens. If an agency really wants Chevron deference, it can always engage in rulemaking. My opinion aside, the true degree of deference that Skidmore requires is still hotly debated. See Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 125 (2007).)