How "Mead" Has Muddled Judicial Review of Agency Action
Bressman, Lisa Schultz
In "United States v. Mead Corp.", the Supreme Court held that an agency is entitled to Chevron deference for interpretations of ambiguous statutory provisions only if Congress delegates, and the agency exercises, authority to issue such interpretations with "the force of law." The Court did not define "force of law," and thus did not determine what type of agency procedures fit within Mead. Four years have passed since the Court decided Mead, and despite numerous Court of Appeals decisions, we still do not know when an agency is entitled to Chevron deference for interpretations issued through procedures less formal than notice-and-comment rulemaking or formal adjudication. Lower courts agree that, after Mead, agencies must issue interpretations in formats that reflect some indicia of lawmaking authority. But they lose focus thereafter. First, lower courts employ different analytical frameworks to determine the relevant indicia of lawmaking authority, making Chevron deference turn more on the decisional preference of a particular court than on the procedural choice of a particular agency. Second, lower courts cite uncertainty about Mead as reason to avoid extending Chevron deference exclusively or at all, taking easier routes that may restrict agency interpretive flexibility. Finally, lower courts read Mead to address a question more general than intended - namely, whether agencies possess delegated authority to issue interpretations governing the scope of their own authority, even through notice-and-comment rulemaking. In the process, they ignore what little guidance Mead provides on the significance of notice-and-comment rulemaking for Chevron eligibility. If justified in so doing, they nonetheless turn the decision somewhat on its head, reading it as relevant to determining when an explicit delegation of interpretive authority is necessary rather than when an implicit one is present. The consequences of Mead have not been good, as Justice Scalia predicted in his dissent. After surveying the chaos in the lower courts, this Article calls for clarification of Chevron analysis by accommodating procedural innovation within defined bounds. Thus, it neither advocates Justice Scalia's solution of abandoning the focus on procedural formality nor endorses the Court's current position, which recognizes the significance of procedural formality but permits Congress or agencies unbounded room to create procedures that are more efficient than the relatively formal ones we have come to accept for administrative lawmaking. While the Article could defend a formalistic approach that restricts Mead to notice-and-comment rulemaking or formal adjudication, it ultimately argues for more nuanced approach that allows Congress to design and agencies to invoke informal procedures without sacrificing Chevron eligibility so long as those procedures generate interpretations that are transparent, rational, and binding. It further contends that this approach is consistent with the best reading of Mead and its erstwhile partner, "Barnhart v. Walton".