-129- statute is more “a question of policy than of law. * * * When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policy-making authority to an administrative agency, the extent of judicial review of the agency’s policy determinations is limited.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991). We have, in some cases at least, viewed the decision to analyze a regulation under National Muffler as a mandate to undertake a review of the Secretary’s legal analysis, construing “reasonableness” under National Muffler almost as meaning “the most reasonable construction.” Compare the majority’s analysis in today’s Opinion to the minimal deference given regulations under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944): “The weight * * * in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control.” This “hard look” deference simply doesn’t reflect the contemporary understanding of administrative law that regulations are a way to make policy choices, not just a way to interpret ambiguous statutory phrases. I agree with the majority that the judicial interpretations of section 882(c)(2) in the years beforePage: Previous 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 Next
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