Fordham Law Review
No symposium entitled ―Chevron at 30‖ would be complete without some consideration of the U.S. Supreme Court‘s subsequent decision in United States v. Mead Corp.3 As Thomas Merrill and I documented years ago, in the years leading up to Mead, courts were in substantial disarray over which agencies and actions were eligible for Chevron‘s requirement of strong, mandatory deference.4 Some disagreements concerned the nature and scope of agency authority. For example, the federal circuit courts were divided over whether an agency that lacked the power to adopt legislative rules could claim Chevron deference for its statutory interpretations.5 Other questions focused on the formats agencies used to communicate their interpretations. Regulations adopted through notice-and-comment rulemaking seemed obviously Chevron-eligible, as Chevron itself concerned such a rule.6 Courts were less clear, however, about the eligibility for Chevron review of agency adjudications or rules that lacked notice and comment procedures, like proposed rules, interpretative rules, or interim rules.7
Kristin Hickman, The Three Phases of Mead, 83 Fordham L. Rev. 527 (2014), available at https://scholarship.law.umn.edu/faculty_articles/67.