They walk through Skidmore v. Swift & Co., a 1944 case involving firemen at a meatpacking plant and whether on-call waiting time counts as compensable work. The key issue was not disagreement over expertise, but authority: the agency administering the Fair Labor Standards Act had issued extensive guidance but lacked formal rulemaking power. The Court’s response—giving agency interpretations weight proportional to their persuasiveness—created a doctrine that applied specifically when agencies lacked the force of law.
From there, Gwen and Marc situate Skidmore in historical context, contrasting it with highly deferential cases like Yakus v. United States and showing that Skidmore was never meant to replace strong deference where Congress had delegated rulemaking authority. They then explain how Skidmore operates in practice through its familiar factors—thoroughness, reasoning, consistency, and expertise—and why it creates flexibility at the cost of predictability.
The episode closes by tracing Skidmore’s resurgence after United States v. Mead Corp., which limited Chevron to actions with the force of law and returned Skidmore to center stage for guidance documents, opinion letters, and other informal agency actions. This episode sets up the post-Chevron world by explaining what kind of deference remains—and what has been lost.
What They Cover in This Episode
• The facts and holding of Skidmore v. Swift & Co.
• Why lack of rulemaking authority mattered
• “Power to persuade, if lacking power to control”
• The historical baseline of strong agency deference
• The Skidmore factors and how courts apply them
• Why Skidmore is flexible but unpredictable
• United States v. Mead Corp. and the return of Skidmore
• How much of modern governance operates under Skidmore