beach_terror wrote:Yeah. I'm still kind of confused as to where this falls on the big flowchart of administrative law, but the informal/formal distinction governs whether you apply Mead or Chevron.
is basically another tool of judicial review. Be careful about the differentiation between Mead
and added another step to the Chevron
Let's say a court sits down to do some judicial reviewing. They are looking at the whole record that was before the agency at the time they made their decision, because that's what Overton Park/u] and [u]State Farm
say to do, and they notice that part of the agency's decision involves them looking at a statute and determining that the statute means X. The challenger is all like "hells no, it doesn't mean X...it means YZP." So the court, before Chevron
, was all like "well, jurisprudence on figuring this out is all over the map, but I think that Skidmore
tells me to give an agency the deference it is due because of it's expertise...but what in the holy cow balls does that even mean?"
And so the Court got tired of trying to figure all this out, and they used Chevron
to say "OK little bitch courts, when you're performing a judicial review of some agency shit, and when an agency's decision involved statutory construction of a statute administered by the agency, here's what you do...first, you look at whether Congress has directly
spoken to the precise
question at issue....did they? Because if they did, that controls and the agency and courts have to go with that. If Congress's intent is not clear, then if the agency's construction is reasonable or permissible, then it's fine and dandy and you, little small-potatoes judge, you can go play some golf and do blow off a hooker's butt."Chevron
was supposed to be this bright-line rule that fixed all the confusion. But, in true SCOTUS fashion, Stevens was a little bitch about it and used Mead
to screw it all up. Now, under Mead
, before you can even get to Chevron
, they added a "Step 0". Now, court have to ask "well, can the agency even make rules that carry the force of law? Oh, they can? Well, the interpretation we're looking at, was it made under that authority?" When they ask that, they want to know how the agency made the interpretation...was it formal, like a trial-type proceeding, or maybe notice & comment? If it was some formal-type proceeding, preferably Congressionally-approved, then you move on to Step 1 of Chevron
. If it wasn't very formal, like an opinion letter or something like that, then you go back to Skidmore
deference. Both Step 0 (Mead
) questions have to be answered in the affirmative to move on to Step 1.
Now, there is some BLL kicking around all this. An agency is not entitled to Chevron deference when:
1. Litigating positions for the first time
2. Positions articulated for the first time in briefs
3. Not entitled to deference insofar as the agency is acting as a prosecutor
4. Not if interpreting a statute that is enforced by many agencies
5. Not if interpreting the APA
That's the basic analysis. Read on for more policy-type boring shit.
Still here? Good.
Here is the dirty little Chevron
secret...it didn't actually clear anything up. You see, in the infamous Chevron
"footnote 9", the Court said that the judiciary gets to decide if Congress's intent was clear. And how do they do that? Why, glad you asked! "Traditional tools of statutory construction" is the answer you seek. And what does that mean? Well, anything a court wants it to mean. It's pretty much up to the judge how the interpret Congress's intent. Hence, the same case before different circuits might get different responses. What are the "traditional tools of statutory construction" you may ask? Well, they include things like statutory language, legislative intent, history, plain meaning of text, statutory context, avoiding absurd / perverse results, policy judgments (you're reasoning sucks ass!), dictionary definitions, overall purpose, canons, legislative history, and interpretive canons of construction. What does all that mean? That judges can find what they want to find.
Not to mention that Chevron
is based on a huge legal fiction. According to Chevron
, when Congress was silent on something, it wasn't being balls-out lazy, Heavens to Murgatroid no! They meant
to do that and confer discretion to the agency! Right....but, everyone went along with because it's easier. Then Stevens had to whip out Mead
...now we're supposed to do an even more intense analysis into whether a fictional intent is there or not there? Sounds like a winner, right?
Now, also keep in mind that Chevron
took Marbury v. Madison
and trashed it. Before, courts said what the law is. Now, they are deferring to agency's to say what the law is? Or can you say that courts ARE saying what the law is...that Congress delegated to the agency (remember the big legal fiction that Chevron
is based on) to determine what the law is, and the courts are merely enforcing that. Or maybe it's because APA 706 says "courts shall decide all relevant
questions of law" and the courts are just saying "we don't think that is relevant." I mean, you'd think courts would be reluctant to give up that much power, but really, courts have enormous power with Chevron
, given that they determine what Congress's intent was.
Anyway, it's all a big mess, but we go along with it because, well, we're sheep.