Posted: 1 Feb 2002
In this brief essay, Professor Jordan argues that the Supreme Court missed the boat in both Christensen v. Harris County and U.S. v. Mead. In both decisions, the Court held that certain agency statutory interpretations qualify for Chevron deference, while others are to be reviewed under the principles of Skidmore v.Swift and Co. Christensen held that informal agency statements such as opinion letters qualify only for Skidmore review. Mead held that Chevron deference applies only when the agency has been delegated the authority to make rules with the force of law and has issued its interpretation in the exercise of that authority.
Professor Jordan argues that Christensen will result in the same interpretive issue being decided by the courts in some instances and by agencies in other circumstances, depending upon the format in which the agency stated the interpretation under review. Thus, the courts will sometimes decide questions of statutory interpretation that have been delegated to a federal agency. This creates a tension between the branches and considerable confusion about the status of interpretations initially reached by courts. Professor Jordan then argues that Mead further complicates matters by creating an amorphous test that will generate a great deal of litigation without any discernable benefit.
Professor Jordan suggests an alternative approach that avoids any need to choose between Chevron and Skidmore. Drawing upon arguments that Chevron Step 2 review is comparable or equivalent to arbitrary and capricious review, he suggests that Step 2 review itself would inherently distinguish among various types of agency decisions. The more formal the decision, the greater the authority of the agency office issuing the interpretation, the more likely it is that the interpretation would be supported by a well-reasoned explanation. The less formal the decision, the lower its source in the agency hierarchy, the less likely there will be a well-reasoned explanation that could pass review in the nature of the "hard look" test under the arbitrary and capricious standard. Thus, he argues, there is no need to draw fine and difficult distinctions between different types of agency interpretations. Active review under Chevron Step 2 would do the job.
Keywords: Chirstensen,Chevron, Mead
JEL Classification: K23
Suggested Citation: Suggested Citation
Jordan III, William S., Judicial Review of Informal Statutory Interpretations: The Answer is Chevron Step 2, Not Christensen or Mead. Administrative Law Review, Vol. 54, No. 2, 2002. Available at SSRN: https://ssrn.com/abstract=296856