Swallows Holding, Ltd. - Page 42

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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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Last modified: May 25, 2011