When Supreme Court Justice Antonin Scalia cited research by law professor Lisa Bressman in his concurring opinion the case of Coeur Alaska, Inc. v. Southeast Alaska Conservation Council et. al., he highlighted an issue that administrative law scholars like Bressman find troubling: the balance of power between regulatory agencies and federal courts.
The doctrine that federal court judges typically apply in cases such as Coeur Alaska, which deal with how regulatory agencies interpret the statutes they implement, is known as "Chevron deference." This doctrine takes its name from the 1984 Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a case that dealt with the interpretation of a statute addressing air pollution. "Chevron is viewed as the most important case in modern administrative law because it established a framework for judges to apply when reviewing the way that regulatory agencies interpret their own statutes," Bressman says. "In the Chevron decision, the Supreme Court said that regulatory agencies get to interpret ambiguous provisions of the statutes that they implement as long as their interpretations are reasonable. After Chevron, judges approached cases involving agency interpretations by applying the test from that decision, which recognizes that agencies are generally in a better position than courts when it comes to filling in the policy gaps in regulatory statutes."
But when the Supreme Court decided United States v. Mead Corp. in 2001, it "muddled" the doctrine of Chevron deference and created problems for courts reviewing agency interpretations, according to Bressman. "The Mead Corporation makes imported day planners, which are basically calendars with a small space for diary entries," Professor Bressman explains. "The U.S. Customs Service classified these day planners as 'diaries' that are 'bound' under a tariff statute, which meant they were subject to a higher tax rate."
Mead was notified of the Customs Service's decision in a ruling letter. "Ruling letters are issued by literally thousands of Customs offices," Professor Bressman says. "So it was possible that another office would have issued a different opinion about the same sort of item."
Mead challenged the ruling letter in court, and the case went all the way to the Supreme Court. There, the Court's discomfort with the ruling letter produced a decision that effectively supplemented the Chevron test in an uncertain way, according to Bressman. "The Court held that an agency is entitled to Chevron deference for interpretations of ambiguous rules only if the agency possesses and exercises authority to issue such interpretations with 'the force of law,'" Bressman says. "But the Court did not define 'force of law.'"
Justice Scalia wrote a scathing dissent in the Mead decision, predicting that "uniformly bad" consequences would result in cases involving agency interpretations as courts struggled to apply what Professor Bressman calls the "squishy standard" established by the Mead decision. "Justice Scalia has been one of the strongest voices advocating a simplified approach to this question of judicial deference to agencies," says Kevin Stack, Vanderbilt Law School's associate dean for research, who is also a scholar of administrative law. "In his dissenting opinion in Mead, he forcefully argued that the Court was adopting an approach that would be incoherent and overly complex for lower courts."
Intrigued by the force of Justice Scalia's dissent, Bressman decided to track the impact of the Mead decision in the federal courts of appeals. "I thought the point he was making in his dissent was worth investigating, so four years after the Mead decision came down, I studied lower court decisions that reviewed agency interpretations," she recalls. "I found that not only was Justice Scalia correct when he predicted bad consequences coming in the wake of Mead, but that he had really understated the problems created by Mead."
In the article based on her research, "How Mead Has Muddled Judicial Review of Agency Action" (58 Vanderbilt Law Review, 2005), Bressman identified several patterns in the ways federal courts of appeals were dealing with cases challenging the way agencies interpreted rules. "The one Justice Scalia picked up on, which he cited in his concurring opinion in the Coeur Alaska case, is what I termed 'Chevron avoidance,' when courts go out of their way to give an agency deference without committing to any particular doctrinal framework," she says. "The agency wins the case, but the regulators at the agency aren't really sure why. Did the interpretation carry the 'force of law'? Was the interpretation simply persuasive enough for the court to adopt it? So the agency is left with little guidance going forward. That might matter if the agency wants to think about changing that interpretation in the future, which Chevron deference in theory permits but other doctrines do not."
Bressman was pleased that Justice Scalia cited her analysis of the problems created by the Mead decision in his concurring opinion in Coeur Alaska. "But we part company in the way we'd like to see the issue resolved," she says. "Justice Scalia thinks we ought to get rid of Mead altogether, and just have a straightforward Chevron doctrine. I have more sympathy for the Court's impulse in cases like Mead. In my article, I argue for a more nuanced approach that allows agencies to invoke informal procedures without sacrificing Chevron eligibility so long as those procedures generate interpretations that are transparent, rational and binding."
Bressman, who joined Vanderbilt's law faculty in 1998 after working for the Office of Legal Counsel in the U.S. Department of Justice, was a clerk to Supreme Court Justice Stephen Breyer and to Judge José Cabranes on the U.S. Court of Appeals for the Second Circuit after earning her law degree at the University of Chicago. A nationally respected administrative law scholar, she is co-director of Vanderbilt Law School's Regulatory Program.