The Mead Doctrine: Of Rules And Standards, Meta-Rules And Meta-Standards

In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures, whether the agency adopts a rule of decision that generalizes to more than a single case, and whether the agency\u27s decisional rules apply uniformly throughout its jurisdiction. This paper argues that the scope of the Chevron doctrine should be governed by a meta-rule, rather than a multifactorial standard as suggested in Mead. The paper also proposes a meta-rule: Congress should be deemed to delegate authority to an agency to make rules with the force of law when Congress has provided by statute that agency action, once final, will give rise to sanctions, forfeitures, or other adverse legal consequences for parties who violate that action

The Judicial Prerogative

In John Locke\u27s account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power to act according to discretion for the public good, without the prescription of the law and sometimes even against it. Locke explained that such a discretionary power is required because it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on all occasions and upon all persons that may come in their way. Given their experience with George III, it is not surprising that the Framers of the United States Constitution failed to embrace Locke\u27s executive prerogative. The Supreme Court, for its part, has also rejected it. The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good times and bad, Justice Black wrote in his opinion for the Court in the Steel Seizure Case. Justice Black concluded that the President enjoys no inherent power to act in default of Congress; his authority must in every case stem either from an act of Congress or from the Constitution itself. The question I address in this paper is whether the conclusion reached by Justice Black in the Steel Seizure Case applies with equal force to the judicial branch of the federal government. That is to say, do principles of separation of powers embodied in the Constitution permit federal courts to exercise a judicial prerogative – a power to promulgate federal rules of decision according to discretion for the public good, without the prescription of the law and sometimes even against it – or are federal courts, like the President, constrained to act only pursuant to authority found in enacted law

Incomplete Compensation for Takings

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is tantamount to an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is barely in its infancy. Consequently, the standards for determining the measure of compensation for international regulatory takings are also extremely underdeveloped. Valuation techniques that have been developed in the context of formal expropriation may not translate readily to regulations that leave possession undisturbed, but reduce the value or profitability of property. The most obvious source to look to for guidance in determining the measure of compensation under international law is domestic takings law. The largest and best-developed body of such law is undoubtedly American constitutional law. The Fifth Amendment of the United States Constitution, which has been in effect for over 200 years, requires the payment of just compensation for takings of property. For the last eighty of those years, it has been established that regulations may, in certain circumstances, impair property values so severely as to constitute a taking. When one examines American compensation law, however, one finds that here too there is little guidance about how to measure just compensation in regulatory takings cases. At most, American law suggests some plausible models that can be adapted to the regulatory takings context

Rescuing Federalism after \u3ci\u3eRaich\u3c/i\u3e: The Case for Clear Statement Rules

The Rehnquist Court\u27s federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court\u27s decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles the Court established in Lopez have been largely eviscerated by Gonzales v. Raich, the Court now has the opportunity to consider whether to turn to a strategy of clear statement rules. Such an approach would put Commerce Clause jurisprudence on a sounder footing, and could be achieved without upsetting the results in any of the major decisions in the post-Lopez era

Preemption and Institutional Choice

Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to deciding who decides. Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for say[ing] what the law is? The answer traditionally given by American legal academics – the federal courts, and especially the Supreme Court – may or may not be the best choice in any given context. Other possible agents of norm articulation – the constitutional amendment process, Congress, the President, administrative agencies, state governments, world organizations, markets – also need to be considered and evaluated on a comparative basis. The law of preemption is ripe for reconsideration in light of this kind of comparative institutional analysis. At least two broad trends support this inference. First, a number of Supreme Court decisions have suggested, at least implicitly, that preemption questions should be redirected from the courts to Congress. In Cipollone v. Liggett Group, Inc., for example, Justice Stevens\u27s opinion for the Court stated that when Congress has enacted an express preemption clause, this should provide the exclusive basis for decision, rather than any doctrine of implied preemption. This proposition, if consistently applied, would promote the view that preemption should be primarily a matter of legislative determination. Other decisions have applied a presumption against preemption unless a clear and manifest purpose of Congress to preempt can be discerned. This presumption, if consistently applied, would also shift authority for making preemption decisions from the courts to Congress. A second trend suggesting the need for an institutional choice analysis is a growing controversy about whether courts should defer to the views of administrative agencies on the preemptive effect of statutes and regulations. The Supreme Court dodged the issue in Watters v. Wachovia Bank, N.A., which presented the question whether a preemptive regulation issued by the Office of the Comptroller of the Currency (OCC) was entitled to Chevron deference by reviewing courts. Five Justices, speaking through Justice Ginsburg, concluded that it was unnecessary to reach this question because the statute itself compelled preemption. Three dissenting Justices – Justice Stevens joined by Chief Justice Roberts and Justice Scalia – would have decided the question and held that agencies are not entitled to Chevron deference for preemption determinations. Controversy has also been stirred by the practice of federal agencies offering advisory opinions about the preemptive effect of federal statutes and regulations. Products liability defendants have urged courts to defer to these views. The Supreme Court again recently avoided determining how much weight courts should give such views as advanced by the Food and Drug Administration (FDA), but has granted review in yet another case which now may require that it revisit the issue in the FDA context. Obviously, a general practice of deferring to administrative agencies on questions of preemption would shift authority for resolving preemption controversies away from courts toward agencies

The Misplaced Flight to Substance

Courts and commentators have struggled for years to come up with a substantive test for what kinds of condemnations are for a public use. Does public use mean government ownership and control of property after it is taken? This would preclude delegation of eminent domain to common carriers and utilities. Does public use mean public access to the property after it is taken? This would preclude using eminent domain to acquire facilities off-limits to the public, like prisons. Faced with these problems of under-inclusion, courts have gravitated to the idea that public use means public purpose. The U.S. Supreme Court adopted a broad public purpose definition as a matter of federal constitutional law in Berman and Midkiff See Bennan v. Parker, 348 U.S. 26 (1954); Hawaii Rous. Auth. v. Midkiff, 467 U.S. 229 (1984). Nearly all state courts have followed suit. TI1e result is that virtually any project that has a plausible public interest justification satisfies the public use requirement, as currently defined

Two Social Movements

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education and the voting rights cases appear to presuppose that the meaning of the law can change over time as courts\u27 perceptions of social exigencies change. The civil rights revolution has also thrust courts deeply into the governance of traditionally autonomous institutions such as local schools, election boards, prisons, and mental hospitals. There is a second social movement, however, that can also lay claim to have transformed our conception of law and the role of courts – the environmental movement. Environmentalism burst onto the scene on Earth Day in 1970 and, despite some challenges to its position, has not departed since. Although the influence of environmentalism on the legal system has not been as pervasive as that of the civil rights movement, it too has left its mark in many ways. For example, environmentalism can take credit for the vast expansion in the law of standing that took place in the early 1970\u27s. Similarly, environmental groups pioneered the use of public interest law firms as private enforcers of public laws. As a consequence of these and related developments, the environmental movement gave rise to a new and much more aggressive style of judicial review of agency action, known as the hard look doctrine. Environmentalism has also had an impact on substantive legal norms, most prominently perhaps with respect to causation, where courts have gone so far as to hold that liability may be imposed under the Superfund statute without regard to any showing of causation of injury at all. Each of these innovations has spilled over from environmental controversies to other areas of the law