Document Type

Article

Publication Date

2006

Abstract

One area in which I teach and have become increasingly interested over the last few years is administrative law. Although one might expect at a symposium honoring the jurisprudence of Justice Stevens that I might focus solely on his most famous administrative law opinion, Chevron v. Natural Resources Defense Council, Inc., and its two-step test that requires a court to defer to a reasonable agency interpretation if the statute is ambiguous, I have instead decided to take on the United States Supreme Court's more recent consideration of what to do with those actions agencies take that, unlike the bubble rule at issue in Chevron, likely do not go through any required Administrative Procedure Act ("APA") process and lack the "force of law." The deference owed to these agency guidance documents, interpretive rules, and other more informal actions was the subject of Christensen v. Harris County and then more fully explored in United States v. Mead Corp. This area is of particular interest to me (1) because it causes my students more anxiety than any other area of administrative law (which is saying something since administrative law was never considered an easy field before the additional wrinkle of Christensen and Mead came along), and (2) because it is an area that I think is calling out for Justice Stevens's unique blend of theory and pragmatism, the sort that was on display in that famous Chevron case.
I first focus on Christensen and Mead and provide an explanation of what the Court held in those cases. Next, I provide a brief summary of what the lower courts have done in the wake of these cases as they have tried to apply the Court's instructions. Finally, I propose a new approach that builds on Justice Stevens's original two-step test of the Chevron case but adds new steps aimed at resolving the current confusion, including better directions regarding when Chevron applies as well as a slightly modified test for Skidmore deference. My guess is that the Justice would probably agree with the slight modifications I have made to the Court's Mead holding. Even more importantly, however, I think that he would, as I have attempted to do, provide clearer directions for the lower courts to follow.

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