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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 before
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