Spurious Interpretation Redux: \u3cem\u3eMead\u3c/em\u3e and the Shrinking Domain of Statutory Ambiguity

In skewering the Supreme Court\u27s recent decision in United States v. Mead Corp., Justice Scalia\u27s rhetoric is exceptional. He derides the decision as one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action. Its consequences will be enormous, and almost uniformly bad. Although Justice Scalia objects to Mead\u27s new and uncertain limits on the applicability of the Chevron doctrine, this Article will focus instead on how Mead employs a method of interpretation imputing a clear intent to Congress, and authorizes courts to discern statutory meaning without strong deference to an agency\u27s expert and political interpretation of the statute. This Article begins by briefly describing the interpretive regime defined by Chevron. That regime found in statutory ambiguity an implied delegation of lawmaking power to agencies. The Article then discusses how Mead changes that default rule to one delegating principal interpretive lawmaking power to courts in the absence of affirmative evidence of congressional intent to delegate that power to agencies. This shift resulted from an interpretive method that spuriously imputed intent to Congress. Although the Mead Court purported to accept the rule of deference dictated by Congress, the Court itself was the source of the imputed intent. This Article concludes by discussing how Mead\u27s interpretive approach is similar to the approach in an important and growing line of Rehnquist Court decisions loading the interpretive dice in favor of results not clearly intended by Congress, and thereby arrogates to the judiciary lawmaking power better exercised by the legislature or the agency