United States v. Mead: Complicating the Delegation Dance

William S. Jordan, University of Akron Law School

Abstract

On June 18, 2001, the U.S. Supreme Court decided United States v. Mead Corp., the third time in the last two years that the Court has directly addressed the question of when the deference authorized by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applies to federal agency decisions. Dissenting, Justice Antonin Scalia said of the majority's opinion: "Its consequences will be enormous, and almost uniformly bad."

Why would the mild mannered Justice write in such harsh terms? The answer may lie in Justice Scalia's view that Chevron had established a regime in which statutory ambiguity gave rise to a presumption "that Congress meant to give the agency discretion, within the limits of reasonable interpretation, as to how the ambiguity is to be resolved. By committing enforcement of the statute to an agency rather than the courts, Congress committed its initial and primary interpretation to that branch as well." To Justice Scalia, this principle is "important to the division of powers between the Second and Third Branches."

With ambiguity as the central factor in determining the application of Chevron deference, Justice Scalia had what seemed to him a relatively simple, relatively determinate test. Judges might argue about ambiguity, but the results, for him at least, were relatively clear. As a result, the courts were limited in their ability to intrude upon the prerogatives of the executive branch. By contrast, Justice Scalia sees Mead replacing Chevron's straightforward test with "th'ol' 'totality of the circumstances' test," "beloved by a court unwilling to be held to rules."

In fact, two recent deference decisions by the Court had already explicitly begun to undermine Chevron's dominance. In Food & Drug Administration v. Brown & Williamson Tobacco Corp., the Court held that a court could reject Chevron deference based upon "common sense as to the manner in which Congress is likely to delegate" a particular policy decision to an administrative agency. It is hard to imagine a loophole more obvious than an invitation to a judge based upon "common sense." And in Christensen v. Harris County, much criticized in Justice Scalia's Mead dissent, the Court had held that Chevron deference did not extend to interpretations contained in opinion letters, agency manuals, and similar informal issuances.

Thus, Chevron's treasured clarity had already been some-what obscured. Still, Brown & Williamson, involving the long and tortured history of Congress' struggle over what to do about the hazards of tobacco, seemed truly an extraordinary case. Perhaps the "common sense" concept would be limited to the very few circumstances of that magnitude. And Christensen seemed relatively clear in excluding certain statements from Chevron's purview.

In that context, was Mead the unmitigated disaster that Justice Scalia envisions, or was it simply another small incremental step in the refinement of Chevron doctrine?

As discussed below, the answer seems to be that Mead has fundamentally changed the structure of deference analysis. Where once we had the "Chevron two-step," now we have a more complex dance of at least four steps, the second and third of which are not at all clear on the dance diagram. It took us perhaps a decade to learn the Chevron 2-Step. We may well be another decade or more learning to handle these new steps elegantly and efficiently.