John O. McGinnis (Northwestern University – Pritzker School of Law) & Phil Pillari have posted Against Deferential Skidmore (78 Administrative Law Journal ___ (forthcoming 2026)) on SSRN. Here is the abstract:
This Article argues that any version of Skidmore that grants agencies institutional weight for expertise in their interpretation of statutes is incompatible with § 706 of the APA and cannot survive Loper Bright. The Article distinguishes between “educational Skidmore,” which treats agency views as useful information, and “deferential Skidmore,” which gives agencies a doctrinal thumb on the scale for their legal interpretations. Contrary to the emerging scholarly consensus, we show that deferential Skidmore is unlawful. Section 706’s text, structure, and history foreclose a standard of review for legal questions that defers to agency expertise beyond what its persuasiveness warrants, and neither Skidmore nor Hearst is plausibly incorporated as “old soil” importing as matter of past doctrine expertise-based deference into section 706. Deferential Skidmore meets every criterion Loper Bright used to abandon Chevron: it is egregiously erroneous, unworkable, and elicits no substantial reliance. Changed conditions also favor overruling deferential Skidmore: the premises for institutional deference have eroded in a world where the political control of agencies is recognized and where there is wider access to the technical knowledge relevant to interpreting texts. The “respect” due to agency expertise under Loper Bright is consistent with “educational Skidmore.” Agency expertise in statutory interpretation is a source of illumination, not authority.
Highly recommended.