Means and Ends in the Roberts Court: Ignoring the Lawyerrs Craft to Reshape Administrative Law

Abstract

In last year’s term, the Supreme Court considered the question of the scope of Chevron deference in City of Arlington v. FCC. This article presents that decision as an example of the work of an activist Court. The case should have been resolved by a straightforward determination under the analysis of United States v. Mead that Chevron deference did not apply to the FCC’s legal determination. The Court ignored this restrained approach to the case and instead addressed the question the Justices desired to decide: the reach of Chevron deference. The article discusses and criticizes the approach of Justice Scalia writing for the majority and of Chief Justice Roberts writing for three dissenting Justices. The Court’s decision has the potential to undercut significantly the impact of Mead because it holds that Chevron deference applies to the question of whether Congress had delegated law making power to the agency and it is unlikely that many statutes will clearly limit the delegation of law making power to an agency. City of Arlington may accordingly be read as establishing that a court must defer to an agency’s decision that it has received delegated authority when the statute is ambiguous. Such an approach may be defensible if defined as a presumption of legislative intent. The approach, however, directly conflicts with Mead, if it is understood as a context for deference to the agency. The decision also undercuts Mead because application of the accepted, proper Mead analysis would have foreclosed the application of Chevron deference. Practitioners of administrative law can only be confused by the application of Chevron deference, given the informal administrative action being reviewed in City of Arlington and the fact that neither reviewing court actually applied each of the two parts of the Mead test. Because none of the decisions properly frames the Mead analysis, perhaps the likeliest effect of the Court’s decision is that it will simply yield greater confusion about the proper standards for judicial review of agency legal determinations. Because the meaning of the decision is unclear, perhaps its impact will be limited. That lack of clarity is a consequence of the Court’s activist agenda and its failure to be restrained in the application of previously decided rules.