Improving Agencies’ Preemption Expertise with Chevmore Codification

After nearly thirty years, the judicially crafted Chevron and Skidmore judicial-review doctrines have found new life as exotic, yet familiar, legislative tools. When Chevron deference applies, courts employ two steps: they consider whether the statutory provision at issue is ambiguous, and, if so, they defer to an administering agency’s reasonable interpretation. Skidmore deference, in contrast, is a less deferential regime in which courts assume interpretative primacy over statutory ambiguities but defer to agency action based on four factors — the agency’s thoroughness, reasoning, consistency, and overall persuasiveness. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directed courts to review the Office of the Comptroller of the Currency’s (OCC) decisions to preempt state law under Skidmore’s four criteria. It also provided a savings clause that permitted Chevron deference for other OCC determinations. This was the first time that Congress codified either Skidmore or Chevron. By doing so, Congress itself used the judicially choreographed Chevron two-step and Skidmore quadrille — to which I refer collectively as Chevmore — to inform ongoing debates in administrative law. In this Essay for the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, I focus on one way in which Chevmore codification can improve administrative law: encouraging agencies to improve their expertise in preempting state law (or “agency preemption”). To do so, I present a case study of Congress’s response to the OCC’s controversial preemption of state consumer-protection law. I begin in Part I by focusing on administrative expertise’s role in Chevmore deference generally and in agency preemption specifically. With expertise’s doctrinal and normative place in mind, I explain in Part II.A that, because of the OCC’s conflicts of interest and purported status as a “captured” agency, the agency’s broad preemption rulings were most likely not the product of agency expertise. I continue in Part II.B to argue that, with Dodd-Frank’s substantive and procedural preemption provisions (including its codified Skidmore provision), Congress did more than establish its disapproval of the OCC’s broad preemption rulings. Instead, it confronted the conflict and capture concerns by encouraging the OCC to develop and use its preemption expertise. It did so by codifying the appropriate preemption standard, establishing various procedural requirements for the OCC to support its decisions with data, and limiting judicial deference (through Skidmore codification) to the OCC’s preemption decisions. Despite Congress’s largely successful attempt to encourage agency expertise, I briefly conclude in Part II.C by considering how Congress can further improve agencies’ expertise as to preemption specifically and other matters generally. Congress can lead agencies to consider how their technical and administrative expertise interacts with federalism values by requiring the agencies to consider those values and consult with affected parties. Congress can also use Chevmore codification to improve agencies’ use of technical and administrative expertise both in and outside of the preemption context by allowing agencies to exchange Skidmore deference for Chevron deference when they develop and apply their expertise to certain matters