The Supreme Court has offered little guidance on a critical issue in administrative law: how courts should identify whether an agency has changed a rule (1) or departed from precedent. The academic literature has similarly overlooked this issue. Yet defining the federal judiciary's role in identifying agency change has significant implications. Any standard for identifying change must negotiate the relationship between flexibility and consistency--two entrenched but conflicting values in administrative law. Agencies have a critical stake in knowing whether a court will decide that a change has occurred. And a court's decision that an agency has changed its policy often controls the outcome of a case.
This Note tackles the unaddressed "change-identification" issue. Part I situates the problem of identifying agency change in established administrative law doctrine, with a careful eye toward the values of flexibility and consistency. Part II then sets forth a taxonomy of types of cases that present the change-identification problem. Part III analyzes judicial review in these cases and proceeds in three sections: First, it explores the standards, or lack thereof, that courts have traditionally applied in change-identification cases. Next, it argues that judicial standards for analyzing this issue have been ambiguous because these cases implicate unique rule-of-law concerns and institutional division-of-power dynamics. Finally, the Part concludes by identifying two possible standards that courts can use to resolve these cases and contending that a more deferential approach is preferable.
I. CONSISTENCY AND CHANGE
Flexibility and consistency coexist uneasily in administrative law. Allowing for flexibility recognizes that "[r]egulatory agencies do not establish rules of conduct to last forever ... They are neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday." (2) But flexibility comes at a cost. Consistent rules and decisions ensure that parties are treated equally, reinforce the legal system's integrity and core due process values, and settle the expectations of regulated parties. (3) Too much flexibility can harm these bedrock rule-of-law values.
As a result, courts and commentators have struggled to balance these competing concerns. Courts have faced this struggle in at least two contexts: review of an agency's explanation for its policy choices' and review of an agency's statutory authority to act. (5) In the former, Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. (6) established a narrow "hard look" review of agency decisions, which prevents courts from "set[ting] aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute." (7) In the Supreme Court's most recent pronouncement on the subject, FCC v. Fox Television Stations, (8) a 5-4 majority decided that changes to agency rules are not "subject to more searching review" than are first-instance policy decisions. (9) Still, this commitment to flexibility is not uniform: while an "agency need not always provide a more detailed justification," "[s]ometimes it must"--for example, when "its prior policy has engendered serious reliance interests." (10)
Regarding the latter, when reviewing an agency's statutory authority to act, the framework established by Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. (11) instructs courts to defer to an agency's reasonable interpretation of a statute it administers. (12) The fact that an interpretation has changed is not, by itself, "a basis for declining to analyze the agency's interpretation under the Chevron framework." (13) However, courts apply varying levels of deference to different administrative interpretations, depending on a host of contextual factors. (14) Consistency is one such factor that courts consider when calibrating both the level of deference (15) and the reasonableness of the agency's interpretation. …