When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess.
In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency has used that authority in issuing a particular interpretation. Justice Scalia dissented, arguing that Mead makes an "avulsive change" in judicial review of agency action, the consequences of which "will be enormous, and almost uniformly bad." On his reading, "what was previously a general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce has been changed to a presumption of no such authority, which must be overcome by affirmative legislative intent." Lower courts, he warned, would not know what to make of the decision in practice: "We will be sorting out the consequences of the Mead doctrine, which today has replaced the Chevron doctrine, for years to come."
Notwithstanding Justice Scalia's doomsday forecast, the majority believed that Mead was justified in principle. The Court stated that Mead "tailors deference to [the] variety" of administrative procedures that Congress envisions and agencies employ. An agency may receive Chevron deference as long as it chooses a proper procedure for issuing interpretations of the statute it administers. Thus, an agency may receive Chevron deference if it chooses a procedure that Congress generally intends to produce interpretations with the "force of law" - as with notice-and-comment rulemaking or formal adjudication. But an agency might not receive Chevron deference when it selects a more informal procedure unless the circumstances specifically suggest that Congress would have intended the resulting interpretation to carry the force of law. The agency may, however, still earn judicial respect under Skidmore v. Swift & Co., if it produces an interpretation that reflects 'a body of experience and informed judgment"' upon which courts, though not required, may rely.
This Article examines the effects of Mead by studying the court of appeals opinions that have purported to follow the decision.13 Years have passed since Mead was decided, and we still lack a clear answer to the question when an agency is entitled to Chevron deference for procedures other than notice-and-comment rulemaking or formal adjudication. Lower courts adopt inconsistent approaches. Many find ways to avoid the question altogether. Others use Mead in ways broader than the Court intended.
Lisa S. Bressman,
How "Mead" Has Muddled Judicial Review of Agency Action,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss5/1