Reconciling Chevron, Mead, and the Review of Agency Discretion: Source of Law and the Standards of Judicial Review

Research output: Contribution to journalArticle


Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the lower courts, one scholar has written that "Mead has muddled judicial review of agency action,"' and Justice Antonin Scalia has recently lamented the Mead decision's "ongoing obfuscation of this once-clear area of administrative law."' Another prominent scholar has opined that "a threshold question-the scope of judicial review-has become one of the most vexing in regulatory cases."

This Article seeks to reconcile the principles that have animated judicial review of agency legal determinations, including agency exercises of discretion, since before the enactment of the Administrative Procedure Act ("APA"). The reconciliation accounts for the relevant review standards defined in APA Section 706.

This Article begins in Part I by briefly describing the development of review standards regarding agency legal determinations. This presentation is brief because the story is well known. This Part, however, asks the key questions about standards for judicial review that remain unresolved. Part II provides examples of the uncertainties that pervade standards of review for agency legal determinations. These uncertainties are present in Supreme Court decisions, thus demonstrating that the Supreme Court itself is uncertain about the review framework that it has developed over many years. Part III presents an integrated understanding of the standards for review of agency legal determinations, including exercises of discretion. Part IV considers the value of the integrated approach when a court must review a change in an agency's legal interpretation. Finally, Part V relates the proposed regime of review to the review standards defined by the APA.

Original languageAmerican English
Pages (from-to)1-56
JournalGeorge Mason Law Review
Issue number1
StatePublished - Oct 1 2011


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