In this contribution to the annual administrative law symposium sponsored by Duke Law Journal, Professor Pierce explains why he has changed his position and is now urging the Supreme Court to replace the Chevron test with the Skidmore test. He supported the Chevron test for decades because it gives politically accountable agency heads, rather than politically unaccountable judges, the power to make policy decisions and because it increases the number of federal statutes that have the same meaning in all parts of the country.
Professor Pierce now believes that the country can no longer afford the cost of the Chevron test. In the conditions of extreme political polarity that now exist in the U.S., the Chevron test empowers each president to change the most important policies of the federal government every time that an election changes the party that controls the executive branch. As a result, citizens, corporations and prospective investors cannot make wise decisions based on their expectations of future conditions.
The multi-factor Skidmore test authorizes courts to uphold or reject agency policy decisions depending on the quality of the data and analysis the agency provides to support each decision. If a court upholds a policy decision through application of the Skidmore test, the policy remains in effect unless and until the agency can provide high quality data and analysis to support a change in policy.
GW Paper Series
GWU Law School Public Law Research Paper No. 2020-45; GWU Legal Studies Research Paper No. 2020-45