The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards

Thomas W. Merrill, Columbia Law School


In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures, whether the agency adopts a rule of decision that generalizes to more than a single case, and whether the agency's decisional rules apply uniformly throughout its jurisdiction. This paper argues that the scope of the Chevron doctrine should be governed by a meta-rule, rather than a multifactorial standard as suggested in Mead. The paper also proposes a meta-rule: Congress should be deemed to delegate authority to an agency to make rules with the force of law when Congress has provided by statute that agency action, once final, will give rise to sanctions, forfeitures, or other adverse legal consequences for parties who violate that action.