Out with 'deference,' in with 'space' and 'weight'

"Administrative law scholars have leveled a forest of trees exploring the mysteries of the Chevron approach contemporary judges take to reviewing law-related aspects of administrative action. Without wishing to deny for a moment that judicial practice has been inconstant – influenced by the importance of the matter, by the accessibility of the issues to non-expert judges, by politics, and by the earned reputations of differing agencies – this short comment suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, a structure whose basic impulse may be captured by the concept of “allocation.” Steering clear of commonly used review concepts that may muddle rather than clarify the structure’s operation, it avoids the term “deference,” and argues that Instead of “Chevron deference” and “Skidmore deference,” 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, its allocated authority. “Skidmore weight” addresses the possibility that an agency’s view on a given statutory question may in itself warrant respect by judges who are themselves unmistakably responsible to decide the question.  The paper thus argues that a simple and rational synthesis of the leading cases can without difficulty be made, if one abandons the confusions of “deference” for the distinct qualities of “weight” and “space.” Agency views of statutory meaning may often be entitled to considerable weight when judges come to decide for themselves issues of statutory meaning. American courts have recognized this proposition for almost two centuries. More recently we have come to understand and accept that executive agencies may be vested by Congress with authority to act with the force of law, so long as the boundaries of that action can be judicially determined. In that space, the agency is the prime actor, and the very conclusion that Congress has delegated authority to it commands reviewing courts to act, not as deciders, but as overseers." - Deference’ is Too Confusing - Let’s Call Them ‘Chevron Space’ and ‘Skidmore Weight, by Peter L. Strauss, 112 Colum. L. Rev. (forthcoming 2012).