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Is Chevron Out of Gas? The State of Judicial Review 25 years After Chevron U.S.A., Inc. v. Natural Resources Defense Council - Keynote Address

On June 25, 1984, the Supreme Court's landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council created a two-part inquiry to guide judicial review of a federal agency's interpretation of its own statute. Where a statute is ambiguous, the Chevron test calls for deference by the reviewing court to the agency's interpretation. In 2001, the Court attempted to clarify the reach of the Chevron test in United States v. Mead Corporation, which explained that Chevron deference would normally apply to agency interpretations made in notice-and-comment rulemakings or in formal adjudications, but would apply to other agency interpretations only where Congress intended such interpretations to "carry the force of law." Where Chevron deference did not apply, the Mead Court indicated, the agency interpretation would only receive the usual "respect" accorded to it under the Court's 1944 decision in Skidmore v. Swift. Justice Scalia dissented strongly in Mead, calling it "an avulsive change in judicial review," and stating, "We will be sorting out the consequences of the Mead doctrine, which has today replaced the Chevron doctrine . . . for years to come." In the aftermath of Mead, debate has grown over the clarity of the Chevron/Skidmore dividing line drawn in Mead, how much difference it makes in practice, whether the amount of judicial ink spilled on this issue is worth the trouble, and how the doctrine might affect the actions of federal agencies. We mark the silver anniversary of Chevron by asking: What is the state of Chevron law today? Has Mead provided more or less clarity to the courts and affected parties? And where will judicial review go from here?

Full post as published by Washington College of Law Podcasts on April 24, 2009 (boomark / email).