University of Southern California

Judicial Deference to Agency Interpretation of Jurisdiction After Mead

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Note by Torrey A. Cope
From Volume 78, Number 5 (July, 2005)

The pervasive influence of administrative governance is a defining feature of modern American life. Indeed, it is hard to find an aspect of daily life that is not regulated by one federal agency or another: the Department of Labor enforces labor laws; the Environmental Protection Agency (“EPA”) manages air and water quality; the Federal Energy Regulatory Commission (“FERC”) regulates electricity; the Food and Drug Administration (“FDA”) monitors the nation’s food supply and ensures the safety of its medicine; the Board of Governors of the Federal Reserve System (“the Fed”) supervises banking institutions; the Consumer Product Safety Commission (“CPSC”) regulates consumer products; and the Federal Communications Commission (“FCC”) oversees radio, television, satellite, and cable communications. With so many agencies minding America, one might ask: who is minding America’s agencies?

For one, courts have a significant supervisory role. They ensure that agency actions meet the Constitution’s due process requirements and individual liberty protections. Yet at the same time, courts give agencies leeway in interpreting the federal statutes they administer. This is because agencies have technical expertise, democratic credentials, and flexibility that courts do not. There is an inherent tension between these two opposing forces – a need for control and a need for deference. Courts must balance these forces whenever they review challenges to administrative action. During the past two decades, the United States and many other countries in the world have experienced an “epidemic” of obesity. The percentage of obese individuals twenty to seventy-four years of age in the United States was 13.3% during 1960–62, 14.6% during 1971–74, and 15.1% during 1976–80. This percentage increased sharply to 23.3% during 1988–94 and increased further to 31.1% during 1999–2000. The increases occurred across both genders, all age groups (beginning at twenty years), and all major racial categories. Separate data for children (ages six to eleven) and adolescents (ages twelve to nineteen) indicate similar increases. The percentage of children aged six to eleven who are “overweight” increased from approximately 4% in the 1960s and early 1970s to 15.8% in 1999–2002, and the percentage of adolescents who are “overweight” increased from roughly 5% in the 1960s and early 1970s to 16.1% in 1999 -2002. Obesity is a risk factor for IHD and other major causes of mortality and morbidity.

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