Ambiguity and Policy Making: A Cognitive Approach to Reconciling Chevron and Mead
Authors: Shane Peter M. 
Published: December 2018

When decided, both Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and United States v. Mead, 533 U.S. 218 (2001) were trumpeted, whether by supporters or critics, as marking substantial changes in the law governing judicial review of agency statutory interpretation. This essay argues that what the Court actually decided in each case was entirely consistent with the fabric of the law of judicial review of administrative action as woven during earlier decades. Unfortunately, however, the Court's rhetoric in both opinions is confusing and unhelpful at key points, creating impressions of substantial changes in the law when none was being made. As a result, agencies, judges, and lawyers are better served by focusing less on what Chevron and Mead say and more on what they decided, and treating both decisions as elaborating a fairly straightforward approach based on (a) judicial reaction to the clarity of the statute and (b) whether the statute at issue is intended to create an opportunity for genuine agency policy making. In particular, a reviewing judge should first determine whether the statute in question is susceptible to more than one plausible legal reading, and, if only one plausible legal reading is available, the judge should bind the agency to it. If, however, more than one plausible reading is available, the judge should then ask whether the ambiguity in the statute signals an occasion for policy making. In other words, is the agency, in filling the statutory gap at issue, intended to balance expert judgment and relevant political values in order to accommodate the competing interests that need to be taken into account in order to further Congress's objectives in enacting the statute? If so, then, so long as the agency has rationally identified any plausible statutory reading, the judge should consider herself duty-bound to defer to it. If the statute does not contemplate significant agency policy making in its interpretation, then the court should ask itself a third question: Of the plausible readings available, does any appear to the court to be plainly more attractive than its competitors? If not, then the court should likewise defer to an agency choice of any rational interpretation because the agency is the primary policy maker, and the court has no legal ground to prefer any alternative reading to the agency's own. If, however, the court initially finds one plausible reading most compelling, then it retains the authority to impose that reading on the agency. Before doing so, however, the court should pause, open-mindedly. It should consider, if the agency has an alternative preference, whether the agency's reasoning is not in fact sufficient to make its alternative at least as attractive as the court's initial view. In such a case, notwithstanding its own initial view, the court should deem itself persuaded by the agency's statutory reading. This approach, which is guided by the judicial sense of statutory clarity and does not speak of ambiguities or certainties inherent in the statutory texts themselves, is the most straightforward reconciliation of Chevron and Mead.