United States v. Mead Corp.1 is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine.2 According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action."' Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."4
Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards.' He saw Mead as shifting the practice of deference away from the more rule-like Chevron approach toward the more standard-like doctrine associated with Skidmore v. Swift & Co.6 As he noted sarcastically, 'The Court has largely replaced Chevron ... with that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th'ol' 'totality of the circumstances' test.,7 Justice Scalia urged instead that Chevron be declared the sole measure of judicial deference to agency interpretations of statutes, with Skidmore relegated to the dustbin of history as an "anachronism."8
The majority responded with an air of patient resignation. "Justice Scalia's first priority over the years has been to limit and simplify," Justice Souter observed in his opinion for the Court, whereas others would "tailor deference to variety."9 Justice Souter could afford to take a detached attitude toward Justice Scalia's fulminations. In his campaign to award the field to Chevron as the sole survivor in a battle against Skidmore, Justice Scalia failed to attract a single additional vote. 10
But the choice between rules and standards was present in Mead not only at what might be called the primary decisional level-the level where courts decide whether to accept any particular agency's interpretation of a statute. The choice is also implicated at the meta-level where the court must decide which legal doctrine to use (Chevron or Skidmore) in determining whether to accept the agency interpretation. Assuming-as eight Justices evidently do-that we have two deference doctrines, the more rulelike Chevron and the more standard-like Skidmore, how do we determine where Chevron stops and Skidmore starts within the system of judicial review? Do we police this boundary by means of a meta-rule or a metastandard?
Thomas W. Merrill,
The Mead Doctrine: Rules and Standards, Meta- Rules and Meta-Standards,
Admin. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/355