How Mead Has Muddled Judicial Review of Agency Action

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\u27s 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 \u27a body of experience and informed judgment \u27 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

The Future of Agency Independence

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, and Treasury Department involvement in, the policy of the Securities and Exchange Commission. We argue that these mechanisms undermine the conventional distinction between independent agencies and executive-branch agencies. Additionally, we argue that these mechanisms, though producing presidential involvement short of plenary control, are consistent with the strategic political interests of the President. We further contend that they promote political accountability, particularly because greater presidential control is unnecessary to align agency preferences with presidential preferences; indeed, such control might be counterproductive. In making this argument, we present a nuanced vision of accountability and update the standard justifications for independence. We also consider the constitutional implications of the new independence-accountability hybrids that we see, as well as possible applications in areas where executive-branch agencies traditionally have dominated. Our claim is not that these hybrids are part of law in any of these contexts; rather, we seek to highlight institutional relationships that outstrip conventional categories but fit with the development of the administrative state. In the future, agency independence will occur not at odds with political accountability but engaged with it along a spectrum of institutional structures

Setting the Regulatory Agenda: Statutory Deadlines, Delay, and Responsiveness

Congress imposes statutory deadlines in an attempt to influence agency regulatory agendas, but agencies regularly fail to meet them. What explains agency responsiveness to statutory deadlines