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Legislation and Regulation Outline


The Legislative Process and Statutory Interpretation...................................................2

a) Introduction (U.S. v. Kirby, TVA v. Hill)...................................................................2
b) Text and Purpose: the Classic Approach (Riggs v. Palmer; Holy Trinity)................2
c) New Textualism (WVUH; Brogan)...........................................................................3
d) New Purposivism/Judicial Correction of Legislative Mistakes (General Dynamics
Land Systems v. Cline; Public Citizen; US v. Locke; Bock Laundry)..............................5
e) What is the Text? (Nix; Moskal; Smith v. US; Muscarello)......................................7
f) Legislative Intent/Legislative History (Blanchard; Continental Cal; Moore v.
Harris; Montana Wilderness Assn)................................................................................9
g) New Synthesis (Allapattah; Corning Glass Works)...............................................12
h) Dynamic Statutory Interpretation...........................................................................13
i) Changed Circumstances/Stare Decisis (U.S. v. Marshall; Bob Jones; Flood v.
j) Semantic Canons (McBoyle; Silvers; People v. Smith; Gustafson; Circuit City)...15
k) Canon of Constitutional Avoidance (NLRB v. Catholic Bishop; Almendarez-Torres)
l) Rule of Lenity (US v. Bass).....................................................................................19
m) Protecting State Sovereignty/Clear Statement Rule/Preemption (Gregory v.
Ashcroft; Rice v. Santa Fe Elevator; Cipollone; Altria)................................................20
2) Constitutional Structure and the Regulatory State.....................................................22
a) Introduction to Administrative State and Delegation (J.W. Hampton)...................22
b) Nondelegation Doctrine (Schecter Poultry; Whitman; Benzene)...........................23
c) Congressional Control of Delegated Power (INS v. Chadha).................................25
d) Appointment and Removal: History (Buckley v. Valeo; Myers; Humphreys
Executor; Bowsher).......................................................................................................26
e) Appointment and Removal: Modern Doctrine (Morrison v. Olson; Peekabo)......28
f) Presidential Control of Agencies (Various OIRA Stuff).........................................29
3) The Regulatory Process and Judicial Review of Administrative Action....................30
a) Introduction to the APA (Florida East Coast Railway)..........................................30
b) Informal Rulemaking (Nova Scotia; Choc. Mfrs. Assn).......................................33
c) Alternatives to Rulemaking: Adjudication (Chenery; Bell Aerospace)..................35
d) Alternatives to Rulemaking: Agency Policy Statements and Interpretive Rules
(Pacific Gas & Electric; Chamber of Commerce v. Department of Labor; American
Mining Congress)..........................................................................................................37
e) Judicial Review of Agency Procedure and Policy (Arbitrary and Capricious Stuff)
(Ethyl Corp.; Vermont Yankee)......................................................................................39
f) The Hard Look Doctrine (Modern Arbitrary and Capricious) (State Farm)..........42
4) Agency Interpretation of Statutes...............................................................................44
a) Judicial Review of Agency Statutory Interpretation (Skidmore; Chevron)............44
b) Chevron and Textual Interpretation (MCI; Brand X; Sweet Home; Brown &
c) Chevron and the Canons (DeBartolo; SWANCC)..................................................48
d) Limits on Chevron (Mead Corp.)...........................................................................49

1) The Legislative Process and Statutory Interpretation

a) Introduction (U.S. v. Kirby, TVA v. Hill)
US v. Kirby (1868)
Question as to what knowingly and willfully meansdoes it mean if you stop
the mail but have a different purpose in doing so than stopping the mail (viz.
Kirbys purpose in arresting the dude was to fulfill a criminal warrant)
Essentially, the Court carves out an exception for criminal proceedings (but
specifically not for civil proceedings)could have carved out an exception for
collateral obstruction, but chose not to
Court is really driven by the idea that this would be an absurd result example of
absurdity doctrine ridiculous to make it a crime to arrest someone because they
happen to be on a mail boat
TVA v. Hill (1978)
Seminal case in terms of environmental law, seminal case in terms of
understanding the debates over statutory interpretation
Sec of Interior designates snail darter as endangered species, and dam being built
by TVA would kill the snail darter; question as to whether dam should be built or
whether it should be stopped question as to applicability to projects already
under construction
Majority says that statutes overriding purpose is clear protecting endangered
species and they must carry that purpose into effect; also use legislative history
Powells biggest argument absurdity ridiculous to waste all this money to save
this stupid fish but majoritys response is that the legislation contemplated (if
not absurd) then at least dramatic resultsthey placed the highest priority on
protecting endangered species; they had less draconian language on the table and
chose to use the more restrictive stuff
Majority also says implied repeals are disfavored (e.g. subsequent bills do not
impliedly repeal earlier legislation unless explicitly said to do so), and that
appropriations bills do not alter substantive law
Foundational Theories of Statutory Interpretation
Intentionalism most traditional approach to statutory interpretation, though
disfavored now; judge should reconstruct likely intent of the legislature in the
situation before the court
Purposivism Specific legislative intent is illusory, so try and decide cases based
on general aims of the legislature
Textualism Discern how reasonable people would understand the semantic
import or usage of the given statutory text Congress chose
b) Text and Purpose: the Classic Approach (Riggs v. Palmer; Holy Trinity)
Riggs v. Palmer (N.Y. 1889)

NY law says that the only wills that can be set aside are those with fraud or duress
in the inception of the willtext is very clear
Majority nonetheless sets it asidesays that the legislature would not have
intended Palmer being allowed to inherit
Also refers to common law maximno one should be able to benefit from their
own wrongdoingsays this canon was not abrogated entirely by statute in this
o Maybe a principle that statutes abrogating the common law must do so
explicitly? (Makes little sense, because most statutes that affect the
common law are passed for the purpose of changing it)
Strong purposivist case legislature was pretty explicit about what was allowed,
but court ignored it

Church of the Holy Trinity v. United States (1892)

Question as to whether a minister (for a church) is included within definition of
someone who performs a labor or service of any kind
Textual arguments dont have much heft, but have more heft than the textual
arguments in Riggscan argue that minister is a lecturer, or that really only
means labor, or that church is beyond the scope
Always make a textual argument if you can
Preamble of legislation is pretty specific to manual laborers
Nevertheless, really strong purposivist case Court says no way Congress could
have intended this, that US is a Christian nation, so allowed
Reshaping text is not substation of will of judge for will of legislator, but rather a
superior way to give effect to legislative intent
Things to look at in making a purposivist analysis
o Statutes title
o Mischief rule (construe statute so as to combat the mischief legislation
was intended to combat)
o Legislative history
o Societal values (e.g. Christian nation)
o Other evidence of statutory purpose (e.g. complexity of remedial scheme,
relationship with other statutes dealing with the general matter)
c) New Textualism (WVUH; Brogan)
WVUH v. Casey (1991)
Facts are somewhat banal but useful to understand (Prof.)WVUH sues
Pennsylvania over reimbursement rates for Medicaid patients, wins; wants its
expert fees reimbursed (this is a 1983 suit)
Question as to whether experts fees count as attorneys fees under 1988

Scalias opinion judge as grammarian experts fees are not covered under
attorneys fees (were treated separately in other fee-shifting statutes), and stuff
that isnt precisely an attorneys fee (e.g. paralegals, copying) was generally
understood to be included in the attorneys fee
Also makes much of rule against surplusageparts of statute would become
redundant if experts fees were included in attorneys fees
WVUH says statute was intended to return to pre-Alyeska regime, and that court
should interpret it in light of that purpose, but Scalia points out that purpose of
statute is not just what is changed but what is left alone, and best evidence of that
is text
o If Congress wanted to say it, they easily could have said it
It is not courts job to remedy what Congress forgot; it is not our function to
eliminate clearly expressed inconsistency of policy and to treat alike subjects that
different Congresses have chosen to treat differently
Stevenss opinion broader purpose of statute was to make civil rights cases
easier to be broughtif you cant reimburse expert fees then it will frustrate civil
rights litigations
Thinks that Court should guess what current Congress would do, and carry that
into effectpoints out that when court adopts ultra-textualist approach, it usually
ends up being overridden by Congress
Opinion heavy on legislative history, which Scalia discounts
We do the country a disservice when we needlessly ignore persuasive evidence
of Congress purpose and require itto restate its purpose in more precise

Brogan v. United States (1998)

Dude was taking money from companies whose employees he was a union rep
for; agents knew that when they went to his house, but asked him if he was
(without telling him about 1001) and he denied it, so they charged him with a
1001 violation (an additional felony)
Text of the statute, again, is clearsays falsifying or misleading over any material
fact is enough to violate the statute, no exculpatory no in statute, so Justice
Scalia says text is clear, thats that
Justice Scalia very opposed to reading exception into statute because point of
investigation is to uncover truth, and allowing a lie to slip by would pervert the
investigation in the first place
Does not think court should read a statute more narrowly than written by
Congresscannot be Courts practice to restrict unqualified language of statute to
particular evil Congress was trying to remedy
No 5th amendment issue because Brogan is not being compelled to talk; his option
is to remain silent
Separation of powers issueperhaps the purposivist approach aggrandizes the
Court at the expense of the legislatureCongress chooses both the end and the
means to the end

Textualism v. Purposivism Arguments for Textualism and Purposivist Critiques

Textualists do not see legislative process as coherent and reasonable they see
legislation as a product of compromise, and that court just deciding that the
purpose of legislation trumps risks ignoring that compromise
o Purposivist response is that statute still reflects overriding purpose, which
should be followedno thick grammarians spectacles
Purpose of statute can be framed at different levels of generality Radin - to
interpret a law by its purposes requires the court to select one of a concatenated
sequence of purposes, and this choice is to be determined by motives which are
usually suppressed
Purposivists focus on ends of statutes, but textualists point out that statutes
embody choices about means and ends, and ignoring means in favor of ends
might misinterpret statutes purpose
Critique of textualism from purposivists is that legislature often overrides the
textualist interpretation
o Resposne is that what Congress can enact now is not what it would have
or could have enacted in the first place
o And, Congressional correction of judicial mistakes makes the law clearer,
not more opaquereliance on text is more likely to prompt clarification of
imprecise statutes
Is there a general problem when there is inconsistency in approach between
purposivism and textualism?
d) New Purposivism/Judicial Correction of Legislative Mistakes (General Dynamics
Land Systems v. Cline; Public Citizen; US v. Locke; Bock Laundry)
General Dynamics Land Systems, Inc. v. Cline (2004)
Respondents sue on an age discrimination claim (CBA eliminated their retirement
health benefits), says that ADEA prohibits all discrimination on the basis of age
Majority finds that provision banning discrimination on basis of age does not
mean discrimination against the young because of their age
o Common meaning of discrimination on the basis of age only considers
older people; so text is ambiguous on whether younger people are effected
o Legislative history/setting of the statute suggests that Congress/Sec. of
Labor really only had old people in mind when they passed the statute
o Identical words used in statute generally have same meaning, but
presumption is not rigid, and when context differs a ton, meanings differ
to as with age here
Justice Thomass dissent
o Start with text that statute simply says age, and does not specify older or
younger age, so perhaps statute does apply to the respondent
o Also, EEOC agrees that it cuts both waysand the EEOC is the agency
that Congress tasked with administering the ADEA

o Also says that Title VII (Civil Rights) uses the word race, and the Court
has read Title VII to mean any discrimination against any person,
regardless of their race, because of their race
o Congress did not have social history of the phrase discriminate on basis
of age as the ill it wished to cure when it passed this statute
Case is important as an example of textually-constrained purposivism they have
to find ambiguity, and only then go to purpose
Have seen this kind of reading in other case (Zuni (textually-based purposivism),
Milner (Kagan rejects purposivist reading because too far from the text))

Public Citizen v. DOJ (1989)

Absurdity case
FACA requires all consultations with advisory committees by president to be
made public; question as to whether ABA Committee meetings on federal judges
Court says no, would be an absurd result while utilize is in statute, and ABA
committee is utilized, so is any group of two or more people president consults
pure textualist reading proves too much
o Same reading would also require Cabinet meetings to be made public
o Also says would be contrary to statutory purpose
Looking beyond naked text for guidance is perfectly proper when the result it
apparently decrees is difficult to fathom
Kennedy concurrence
o Plain language of the statute is clear here; Court concedes that plain
meaning of utilize is fulfilled and that ends the matter
o However, wants court to really say its invoking the absurdity doctrine,
instead of just saying, Well, were pretty sure it doesnt mean this
o Even then, doesnt think results would be absurd
o Refuses to embrace a revival of Holy Trinity
o Would invalidate law on separation of powers grounds
Absurdity Issues
How absurd must the result be? Would the absurdity in Public Citizen really be as
absurd as what was in Kirby?
How general is the absurdity doctrine? Is it acceptable to invoke the absurd
results that statute would lead to in other situations to prove that in this situation
it doesnt work?
Does absurdity discount the political process? How does one evaluate legislative
history of changes to statute when the supposedly absurd term is added in? Did
people actually want it in there or was it added in without significantly changing
the meaning?
Dont the risks of false positives (applying absurdity doctrine when it shouldnt
be) significantly outweigh the risks of false negatives? If statute is truly absurd,

Congress will soon fix it, but false positives might be uncorrected because certain
powerful groups favor them
United States v. Locke (1985)
Issue in filing mining claims does a provision in a statute saying they must be
filed prior to December 31st mean that of does it also include December 31st in
Court says plain language of statute does not mean on or before December 31st,
and nothing in legislative history deals with what date was actually meant
Even though this doesnt really make sense, court must apply it unless there is
something to suggest that it wasnt meant to be read this way; there isnt
(agencys construction of statute has been consistent with prior to, not on or
before), so claim must fail
o To do otherwise would be legislation, not judging
Dissent (Brennan, Stevens)
o This creates a trap for unwary property owners; statue is either ambiguous
or result of scriveners error
o Wont presume that Congress deliberately created a trap for the unwary
Scriveners Error
Doesnt scriveners error in essence on determining that application of statute
would be absurd?
Alternatively as courts emphasize grammar more and more, does it really make
sense that Congress is paying a ton of attention to commas and semicolons?
e) What is the Text? (Nix; Moskal; Smith v. US; Muscarello)
Nix v. Hedden (1893)
Case hinges on whether meaning intended was ordinary or scientific meaning
Tomatoes fruit or vegetable for purposes of a tariff, whether tomatoes are
considered a fruit or a vegetable
Nix pays tariff to Hedden for tomatoes, but he says tomatoes are fruits, not
vegetables, so he shouldnt have to pay the tariff
Question as to whether court should use ordinary meaning or scientific meaning
court uses the ordinary meaning, and says tomatoes are used the same as
vegetables so theyre vegetables for the purpose of this statute
No real empirical basis for the Courts distinction
Criticism - specific audiencestatute aimed at the produce industryso
presumably they would know that tomatoes are in fact the fruit of the vine
Moskal v. United States (1990)
Whether you look to how a term is used as a legal term of art or whether you look
to its more ordinary meaning

Petitioner participated in a scheme where odometers were rolled back and titles
forged in Pennsylvania, then Moskals petitioner washed the titles by reregistering the cars, and then sent them back to Pennsylvania
Moskal indicted and convicted under statute making it a crime to transport in
interstate commerce any falsely made, forged, altered, or counterfeited
securities; he claims he is innocent because titles were not actually falsely made
they were real titles, just with wrong information
Ordinary meaning benefits the government more, but specialized legal meaning
(established common-law meaning when Congress made the statute) of falsely
made is forged; as so defined, falsely made excluded authentic or genuine
documents that were merely false in content
Canon of construction where a federal statute uses a common-law term of
established meaning without otherwise defining it, the general practice is to give
that term its common-law meaning
o Marshall (majority) says that the common-law meaning is not clear; there
was divergence among federal courts, and when words have no fixed
usage in common law then look to the statutes purpose
o which was to criminalize trafficking in fraudulent securities that
exploits interstate commerce; based on that purpose, think that Congress
meant to adopt ordinary meaning
o Also a surplusage thing thereif falsely made means forged, then forged
means nothing
Scalia dissent
o Thinks falsely preceding made means the manner of making, not the
nature of the product made inexpensively made painting is not the same
as an inexpensive painting
o Surplusage rule is generally sound, but cannot be used to distort a terms
ordinary meaning as it is here
o But falsely made also had well-established common-law meaning when
statute was passed, and that meaning should be applied

Issues With Meaning of Legal Terms of Art

Wouldnt it be quite a coincidence for drafters of a statute to have just randomly
selected a term that happened to have a defined common-law meaning?
o Alternatively, doesnt it seem likely that most rank-and-file legislators
who voted had no opinion one way or the other?
o Response to this is that legislators may not have had specific intent re: that
phrase, but had a general intent regarding having their laws be interpreted
in line with the norms of the prevailing legal culture
Should broad general purpose of the statute trump common-law meaning of a
specific term? Marshall yes, Scalia no
Who is the relevant audience here? Do we really think the criminal defendant here
knew falsely made was a common-law term and thus figured he was safe?
Alternatively, does the rule of lenity apply in the case above?

Smith v. United States (1996)

Issue here is dictionary meaning vs. colloquial meaning
Basically, Smith offered to trade a gun to an undercover officer for drugs;
question as to whether that qualified as a use of a gun within the meaning of 18
USC 924 (which criminalized the use of a firearm during and in relation to
[a] drug trafficking crime
Representing Mr. Smith:
o Must show that use does not equal barter
o Average person-on-the-street does not think of bartering a gun is using a
gunthinks of using a gun as a weapon as using a gunparticularly
appropriate when its use of an instrumentality
As government:
o Use is an expansive terma deliberately expansive termand if
Congress wanted to narrow its meaning it knew how to do it
o Other part of 924 includes other situations that a firearm is used, and
this includes both use as a weapon and transport/barter
Though counter is that they used those to clarify that they meant
stuff beyond the ordinary meaning of use
Do we look to most typical, most conventional meaning, or do we look to the
more expansive meaning? Does the fact that its a criminal statute make a
Muscarello v. United States (1998)
Defendant wants carry (in the above statute) to mean carry on his person,
while govt wants carry to mean transport, etc.
Breyer says purpose of the act is to disincentivize having a gun at all when drugs
are involved, and that even though gun was locked in glove compartment/in the
trunk that still falls within the meaning of the statute
Ginsburg objects because a) these guys are still going to be serving extra time
(based purely on possession), and also because of the rule of lenity
Rule of lenity: criminal statutes should be construed, where ambiguous, in favor
of the defendant in a criminal case
Dictionary v. Colloquial Meaning
Does focus on using dictionary meanings miss or undervalue legislative impulses
that inspired the legislationdo you miss the purpose?
Empirically, congressional staffers responsible for drafting legislation do not
generally rely on dictionaries
Counter dictionaries provide historical record of how people use language in
context, and can provide a starting point for considering how a reasonable person
would have used a given word
Does disagreement over dictionary v. colloquial meaning mean in and of itself
that statute is ambiguous? If so, does that mean Chevron deference, rule of lenity,
come into play no matter what there?

f) Legislative Intent/Legislative History (Blanchard; Continental Cal; Moore v.

Harris; Montana Wilderness Assn)
Legislative History Overview
Not really used prior to 1860, used sporadically until around 1940
Peaks in the mid-80s and started to declinejudges (Scalia, Easterbrook) criticize
its use pretty consistently and effectively
Hierarchy of sources
o Committee reports (both House and Senate individual committees and the
conference committee report)
o Sponsor statements
o History of the bill (e.g. prior proposals that were rejected)
o Floor and hearing colloquies (between members of Congress and between
members and witnesses in front of Committees)
o Idea that all legislators voting for or against a bill will all have same intent
is preposterous especially with agenda control, logrolling, etc.
But if thats the case, does it mean courts should heed legislative
history, because if committees are what makes legislation possible
courts should heed the understanding of those same committees
o Members of Congress could freely insert floor statements, etc. into
legislative record after bills were already passed (cant do so anymore)
o Formalist argument legislative history is not law, and should not have
the force of law it is inherently illegitimate, violates bicameralism and
presentment, etc.
Counter to this is that no one is saying legislative history is the law
its an interpretive tool, nothing more
o Use of legislative history could facilitate circumvention of Article I gets
stuff in statute that couldnt get in there otherwise just to influence judicial
interpretation (the more you use leg history, the phonier it becomes)
o Unlikely that members of Congress have paid any sort of attention to
legislative history; views of members of conf. committee do not represent
views of Congress, and members of Congress do not embrace committees
views when they vote for legislation
Committee members might even be preference outliersthey care
more and more strongly about what they deal with than rank and
file members do
And Committee reports are written by staff and by lobbyists, not
members themselves
o Legislative history expands judicial discretion impermissibly because
leg. history is so vast and so varied judges can basically select whatever
policy outcome they desire looking for your friends in a crowd
Counter is that elasticity of language gives textualist judges same

If statute is genuinely ambiguous, doesnt it constrain judges to be

forced to consult an authoritative source about what a statute
o Costs of research into legislative history are really high for parties;
because its so uncertain, judges should ignore it to save costs
o Overriding issue with the criticism these views apply retrospectively, so
if we abandoned legislative history, wed be applying them to statutes that
had already been passed with legislative history in mindbait and switch
Successive versions of a statute (record of changes to a proposal over the course
of the drafting process) can provide info about whether a statute was narrowed
or broadened
o Criticism is that we never really know why stuff was added or taken out
Subsequent Legislative Action/Inaction idea that if Congress acquiesces in a
judicial statutory construction it was the correct construction (implicit legislative
o Court is now more skeptical of this really difficult to assume that that is
why Congress did not amend a particular statute

Blanchard v. Bergeron (1989)

Issue whether reasonable attorneys fees in 1988 should be limited by
contractual agreement to pay a certain fee (in this case, a contingency fee
5th Cir. case (Johnson) was used by Congress in coming up with 1988, and it
says that fee should be no greater than what it was obligated to pay via contract,
but White (majority) gets around that by also pointing out that the Senate Report
(NOT the House Report) mentions three district court cases that correctly applied
Johnson which allowed greater awards than the contractual obligation, so Senate
must have been aware of that
Scalia (concurring in part and concurring in judgment) calls bullshit on thatsays
there is no way that most members looked at the Committee reports, let alone
looked at these District Court cases, and certainly did not think that District Court
cases trumped Johnson because Johnsons stuff was dictum
Continental Can Company, Inc. v. Chicago Truck Drivers, Helpers and Warehouse
Workers Union (7th Cir. 1990) (Easterbrook)
Statute imposes liability on employers who withdraw from underfunded pension
plans, question as to whether exception applying to pension funds where 50.1% of
money comes from trucking companies qualifies as substantially all under the
IRS says substantially all generally means 85%, which was also said on floor
during House debate; but Senator Durenberger (after bill had already been passed)
adjusted the legislative history to say that substantially all meant a majority


Easterbrook says thats ridiculouseven if substantially all didnt already mean

more than a bare majority (which it does), Durenbergers comments were way too
late to have any use

Montana Wilderness Assn v. United States Forest Service (1981)

Logging company wants access through federal lands to some land it owns so it
can log it; environmentalists objects and sue; question as to whether National
Forest System refers only to forests in Alaska or forests that are part of the
National Forest System throughout the US (statute in question is the Alaska Lands
Legislative history of this bill is sparsenothing dispositive
Committee report on a later statute (three weeks later) interpreted the statute to
mean National Forest System to refer to the entirety of the National Forest System
this is what ends up being dispositive
Moore v. Harris (1980)
Question in statute is who is a miner and who gets counted as suchwhether you
must be an employee of a mining company or if being self-is employed counts as
such provision in statute is is or was employed in a coal mine
Court says it counts; concludes that the guys covered because theyre not going
to read too much into the fact that the statute sometimes says is employed by
someone in a coal mine because its clear Congress didnt mean to exclude selfemployed miners; purpose of statute was to protect people from Black Lung
disease and purpose is so plain that niggling distinction is irrelevant
Purposivism trumping legislative history
g) New Synthesis (Allapattah; Corning Glass Works)
Legislative History Usage Today
Consensus on the court that where the text is plain the only argument you have
when you want to use legislative history is that the result is absurd can consult
legislative history if but only if text is ambiguous
o Concerns if leg history is useless when text is clear, why is it useful in
this situation?
o How does one define ambiguity/how much unanimity on ambiguity must
there be for a statute to be genuinely ambiguous?
o Does a vague term suggest that Congress wants to convey upon the
interpreter (court or agency) the ability to choose what the statute means?

Committee reports and sponsor statements are the most important hierarchy
When in time the history occurredmaterial in front of Congress when the bill is
passed is more helpful (though there are exceptions, see e.g. Montana Wilderness)
Exxon Mobil Corp. v. Allapattah Services, Inc. (2005)


Class-action diversity case; question is whether all plaintiffs in a class must meet
the amount-in-controversy requirement or only some of them need to meet it
whether 28 USC 1367 overruled Zahn
Debate over the usefulness of specific legislative history, rather than the
usefulness of legislative history as a whole
o Committee of judges (chaired by Posner) drafts text for statute and notes
in a footnote that it would overrule Zahn
o House adopts the text without changing itso did they also adopt it with
the idea that Zahn would be overruled?
Subpointhe House Report stated that the law would restore the
pre-Finley regimeand cited Zahn in a footnote
Kennedys response is that the House Report is no more probative than the Posner
committee report
Corning Glass Works v. Brennan (1974)
Question as to whether working at night vs. working in the day makes a difference
as to whether people work under similar working conditionsmust pay equally
if they are (men only work at night), but dont have to if they are not similar
Key insight here is whether you can use legislative history not as probative of
legislative intent but as an external source of information about technical
meanings of terms and decisions to use words and given them a technical
o Court here uses legislative history to show that surroundings and
hazards as used in bill was a technical term, and thus did not include time
of day that work was done
h) Dynamic Statutory Interpretation
Dynamic Statutory Interpretation
Basic idea is that judges should distinguish between specific intent of some
provisions and general intent of a legislature who passes the statute, and follow
general intent where specific intent conflicts
o E.g. if legislature tells you to feed a child only one kind of meat, but that
type of meat disappears, you can figure general intent was to feed the child
some meat and just buy something else
o Issue with that is that maybe legislature really did only want that type of
meat used maybe it was for health purposes, or price, or something else
Arguments against
o Countermajoritarianjudges usurping legislative power
o Institutional competence (see above)
o Rule of lawcourts are just changing interpretations on the fly
o Flexibility allows judges to carry into effect legislatures larger purpose
o Many of same advantages as purposivism
Judges dont often say they are engaging in dynamic statutory interpretation

i) Changed Circumstances/Stare Decisis (U.S. v. Marshall; Bob Jones; Flood v.

U.S. v. Marshall (7th Cir. 1991) (Easterbrook)
Question as to whether weight of blotter paper that LSD was put on should be
included in amount of LSD possessed for statutory punishment purposes
Lawyer for Marshall argue:
o That the medium for LSD (e.g. the blotter paper) should not be included
with the weight of the LSD for sentencing purposessay that paper is not
part of the mixture or substance containing a detectable amount of LSD
o Also make argument that Congress treated pure PCP and PCP
mixture/substance differentlyargue by analogy that Congress must have
meant to treat LSD similarly
o Argue absurd resultpeople dealing non-pure LSD are getting worse
sentences than the people with the pure LSD, and you have to sell far far
more doses of cocaine to get a similar sentence
o Finally, argue rule of lenitystatute is unclear on what exactly constitutes
mixture/substance, so should be construed liberally
Government arguments
o Against absurditynever has been a case where that kind of punishment
has resulted, and could also depend on prosecutorial discretion
o Chemistry definition of mixture or substance does include blotter paper
LSD and blotter paper are in fact a mixture, and you cant scrape the LSD
off the top of the blotter paper or anything like that
o Textually, Congress knew how to distinguish between pure and carrier
items (see PCP provision), and chose not to do that for LSD
o Against too harsh sentencesone, refiners are covered by a different
statute, and two, could have harsh mandatory minimums in an attempt to
get people to flip
Court upholds sentencing based on full weight of the paper; basically says
Congress could have had rational basis for acting as it did
Debate here between Easterbrook and Posner over whether best reading of the
statute is the best semantic meaning of the text or the more sensible reading with
overall goals of the statute
Easterbrook says that even if statute compels odd results, thats Congresss
Debate between positivism and pragmatism per Posner, Easterbrooks approach
buys political neutrality and a type of objectivity at the expense of substantive
injustice [in certain individual cases while his approach buys justice in the
individual case at the expense of considerable uncertainty and judicial
Does judicial power vested in Article III include equitable interpretation?
Bob Jones University v. United States (1983)

501(c)(3) allows organizations to have tax-exempt status, while 170(a) allows

people who donate to charitable organizations to deduct that donationquestion
as to whether schools with racially discriminatory admissions/student policies are
eligible, and whether donations to those schools are eligible
Initially, IRS had said schools with that status to qualify, but District Court for DC
issues injunction against that, so IRS changes its policy to disallow those
In Supreme Court, Bob Jones argues that it qualifies under (c)(3) because it is an
educational institution, and that 501(c)(3) says that it applies to charitable
institutions or educational institutions
Court holds that a combination of factors argues against Bob Jones receiving
status, including:
o Tax-exempt status is for groups that support public policy (because the
general understanding of charitable contribution in 501(c)(3) is based on a
common-law charity concept, which says that), and public policy at this
time is firmly opposed to racial discrimination
Rely heavily on 170 to come to this (but that statute is not what is
being interpreted, and Rehnquist (dissenting) says that this is the
flaw with the majoritys opinion)
Conflict as to Congresss roleon one side, Congress has given primary
interpretive authority to the IRS, but on the other side the IRS could be
overstepping its bounds hereCongress knew about what the IRS was doing and
had repeatedly failed to amend 501(c)(3) to reflect the IRSs reading
Ways Congress can be interpreted:
o Acquiescencesee this hereCongress is aware of the issue but does
nothing, so theyre cool with it
o Reenactment ruleCongress reenacts a statute without making material
changes, so Congress intended to either incorporate or leave intact
previous Court or agency interpretations
o Rejected proposalsproposals that Congress actually considers but then

Flood v. Kuhn (1972)

Curt Flood wants reserve clause gotten rid of because its an unlawful restraint of
trade under Sherman Act, but baseball argues its antitrust-exempt and that said
exemption has been codified in several Supreme Court decisions (Federal BaseBall and Toolson)
In Federal Base-Ball, which was decided pre-New Deal, Court did a basically
Commerce Clause analysisbaseball exempt because the games are put on in
individual states, and fact that players travel is immaterial
In Toolson, they disagree with that interpretation, but keep that interpretation for
stare decisis concerns
In Flood, they make it clear that Federal Base-Ball was wrongly decided but
allow it to stand for stare decisis; think solution should come from Congress,
dont want to open baseball up to retroactive claims, reliance interests (teams have
built their business around that)

j) Semantic Canons (McBoyle; Silvers; People v. Smith; Gustafson; Circuit City)

Semantic Canons Generally
Now more in favor on the court than they ever have been, thanks to textualism
Had been criticized as perverting the will of Congress; additionally, Llewelyn
wrote a famous article about how for every canon theres a countercanon
o Per Scalia, however, what he really did was write an article listing each
canon and its accepted exception and then say they were arrayed against
each other, when really theyre not in conflict
Issue when are canons applied? When word/text itself is ambiguous, or can you
apply them to contravene the plain meaning of a term (see e.g. Gustafson)?
Issue in what order should they be applied? Do they trump legislative purpose
and/or plain meaning? How do you prioritize them against one anotheris it just
up to the judges discretion?
Ejusdem Generis
Definition A general term used at the end of a list encompasses only things
similar to the specific things listed
Application McBoyle v. U.S. (1931)
o Issue is whether a statute dealing with theft of vehicles includes airplanes
language at issue automobile, automobile truck, automobile wagon
or any other self-propelled vehicle not designed for running on rails
o Court uses ejusdem generisbecause all those things run on roads/dont
fly, can assume they meant to only include vehicles on roadsso planes
are not included
Application People v. Smith (Mi. 1975)
o Michigan statute that says any person who carries a dagger, dirk, stiletto,
or other dangerous weaponconcealed on or about his person has
committed a crime
o Defendant here was carrying an M1 rifle concealed in his vehicle; he
states that the statute, based on ejusdem generis, does not apply to rifles
o Court agreesgoes with ejusdem generisgeneral term at end is of the
same kind, meaning stuff similar to daggers, dirks, etc.maybe a shiv or
switchblade, stabbing weaponnot a rifle
o Common sense
o What sort of things count as of the same kind?
Judges applying the canon must make implicit judgments about
which common characteristics of enumerated terms are relevant
o How does this relate with noscitur a sociis?
Generally, ejusdem generis only used for catch-all terms at end of
lists, but noscitur a sociis is applied more broadly


o Do you use this canon (and all canons) all the time, or only when text is
genuinely ambiguous?
o Is ejusdem generis in conflict with the presumption against statutory
If the generic term at the end includes things like those that were
listed, then it includes the things that were listed, making them
But isnt this redundancy entirely understandable and within
common usage? And if you didnt have specific, how could you
know what general means?
Expressio Unius et Exclusio Alteris
Definition when a statutory provision explicitly addresses or includes particular
things, other things are implicitly excluded
Application Silvers v. Sony Pictures Entertainment, Inc. (9th Cir. 2005)
o Question as to who is allowed to sue for copyright infringement; key
phrase is the legal or beneficial owner of an exclusive right under a
copyright is the person allowed to sue (lady wants to sue for
infringement, but she wrote movie under contract, so she doesnt hold
right to copyrightcompany she was under contract with assigned her the
right to sue, but thats it)
o Court decides case on expressio unius groundsCongress lists out who
can sue for copyright infringement, which means that anyone not listed
cant sue
o Dissent criticizes thissays statute was explicitly (per legislative history)
meant to expand copyrights rights, and restricting rights in this way when
the text itself is somewhat unclear is illegitimate
o When does canon apply? How do you tell when something specific is
mentioned by way of example vs. when its meant to exclude other things?
o Doesnt expressio unius directly contradict the standard habit of speech of
most people?
o Should it only be used when Congressional intent cannot be discerned?
What is the order of priority of different tools of statutory interpretation?
Noscitur a Sociis, Presumption Favoring Consistent Meaning, and Presumption
Against Surplusage
Presumption favoring consistent meaning same word or phrase has same
meaning in different sections in the same statute
Noscitur a Sociis words meaning can be clarified and narrowed by meaning of
words surrounding it
Presumption against surplusage each word in statute has independent meaning
such that interpretations which would render it superfluous are disfavored
Application(s) Gustafson v. Alloyd Company, Inc. (1995)


o Whether under 12(2) of the Securities Act includes a sales contract under
its definition of prospectus (if it does, then if you make material
misstatements you can rescind the contract)
o Majority looks at the statute as a whole, and decides that since 10 says
that prospectus must contain all information in a registration statement,
and no contract would contain that, then contract cannot be prospectus
Says that prospectus must mean the same thing in every section
o Dissent says thats total bullshit; look at the provision in question, then the
definitional section, and then the statute as a whole
o Definitional sections says the term prospectus means any prospectus,
notice, circularprospectus includes other things besides prospectus,
and communication (which is in there) certainly includes a contract
o Mostly just know that this is a case where these canons kind of bump into
one another, and court has to prioritize
Criticism consistent usage
o Majority opinion above favors this approach
o You can drag into an opinion irrelevant parts of statute that neither
plaintiff nor defendant is interested in just because you need them for
o Entirely possible that Congress intended the word to mean different things
in different places
o Does same presumption apply when Congress uses same word in different
Per court in Northcross, answer is yes when they deal with similar
Criticism noscitur a sociis
o In case above, communication read more narrowly due to noscitur a sociis
o Is this right? Doesnt this disable Congress from ever combining broad
terms with narrow terms?
o When is it appropriate to be used? Only when relevant statutory term is
ambiguous, or when its clear but in a list?
Criticism surplusage
o Do we really usually express ourselves in ways that avoid redundancy?
Does the fact that its a statute make a difference?
o Tension between ejusdem generis, noscitur a sociis, and presumption
against surplusage

k) Canon of Constitutional Avoidance (NLRB v. Catholic Bishop; AlmendarezTorres)

Substantive Canons Generally
Ask interpreters to put a thumb on the scale to promote a favored value or avoid a
disfavored one
Nominally Constitutionally-based in certain circumstances (e.g. state
sovereignty), but its not text of Constitution ethical interpretation

Canon of Constitutional Avoidance

Generally, the idea is that courts should construe statutes so as to avoid serious
constitutional problems
Basically, this is the most important thing the court can do, and is especially
grave, so should only be invoked when really necessary
Court presumes Congress does not seek to pass constitutionally-questionable laws
Judicial restraint constitutional decisions are a much stronger restraint on
branches of government, so dont make them unless you have to
First articulated by Justice Brandeis in Ashwander says courts will not pass on
Constitutional questions when they dont have to and when presented with two
plausible meanings will choose the one that doesnt cause the constitutional issue
NLRB v. Catholic Bishop of Chicago (1979)
Dispute over whether employer within NLRA applies to parochial schools
parochial schools say collectively bargaining with lay employees could interfere
with their free exercise of religiondecisions made could relate to religious creed
which NLRB cannot get behind
Nothing is really ambiguous about textflat out says any employee except for 8
exceptions, and parochial schools are not an exception
However, court uses constitutional avoidance canonsays that there must be an
affirmative intention, clearly expressed to trigger a constitutional issueif there is
no affirmative intention, even if the statute is otherwise clear, then construe it so
as to avoid Constitutional issueeven if that isnt a particularly plausible
Dissent wants fairly possible, not affirmative intentionif it is fairly possible that
Congress meant to cause the issue, then the Court has to deal with the
constitutional issue
This is a fundamental issue is it fairly possible, or is it affirmative intention?
o The one above
o How clear must the constitutional problem be?
o Does Court have to find the likeliest reading of the statute to be
unconstitutional, and then move on, or does it just have to say there could
be a constitutional issue?
o Does this raise faithful agent concerns? If Congress wants to force a
constitutional issue, shouldnt the courts acquiesce?
o Is it ok for courts to adopt strained readings of statutes when the court had
not actually identified a constitutional violation?
Almendarez-Torres v. United States (1998)
Statute deals with deportation of undocumented individuals; you come back, you
get two years, but (in a separate provision) if you come back after being deported
because of an aggravated felony you get 20 years


o Question is that whether this an enhancement (which doesnt need to be

proved to the jury) or an element of the offense (which does need to be
proved to the jury); if its an element, it must be in the indictment, and it
wasnt put in the indictment in this case
On a fundamental level, majority and dissent disagree on whether this is
unconstitutionalcanon allows court to have its cake and eat it too, in that Breyer
and Scalia both discuss this in terms of constitutional avoidance while also
making clear their positions on its constitutionality

l) Rule of Lenity (US v. Bass)

Rule of Lenity
Idea that ambiguities in criminal statutes are to be interpreted in favor of
Think people should be allowed to know what theyre doing when theyre told
theyre committing a crime fair notice
o Isnt this really unlikely to make a difference when interpretation of the
statute turns on finer points of usage and syntax?
Legislature should define criminal policynot up to courts to criminalize things,
so dont resolve ambiguity, leave it to legislature
o Why is this a greater imperative in criminal than in civil matters?
Legislature has created criminal laws against the backdrop of rule of lenity, so it
has presumptive validity
Similar canon is used when dealing with tax statutes (Gould canon)
Also an anti-retroactivity canon unless explicitly stated, no retroactive effect,
derived from Constitution (Due Process, Ex Post Facto, Takings Clause)
U.S. v. Bass (1971)
Dude was a felon, and possessed a firearm; statute says any felon who receives,
possesses, or transports in commerce or affecting commerce a firearm has
committed a crime question is whether a connection with commerce must be
demonstrated in individual cases, or whether in commerce or affecting
commerce modifies only transports
Court says statute is ambiguous, so invoke the rule of lenity
Dissent says most natural reading of statutes is that in commerce or affecting
commerce only affects transports, so possessing or receiving a firearm, even if
done entirely intrastate, is acceptable
m) Protecting State Sovereignty/Clear Statement Rule/Preemption (Gregory v.
Ashcroft; Rice v. Santa Fe Elevator; Cipollone; Altria)
Clear Statement Rule
Basically a set of federalism canons clear statement rule and presumption
against preemption


Clear statement rule a clear statement of congressional intent is required before

a court will construe a federal statute as interfering with a fundamental aspect of
state sovereignty
Application Gregory v. Ashcroft (1991)
o Question as to whether Missouris mandatory retirement age for judges at
70 conflicted with ADEA prohibition on employer (which includes states)
discharging any individual over 40 because of their age
ADEA contained an exception for employees on the
policymaking level
o Majority (OConnor) says that this is a question of federalism; to have a
federal law that gets involved in such a fundamental state function as
selecting judges is violating state sovereignty
Other side of this attempt to protect federalism is the Supremacy
ClauseCongress can do what it wants within its sphere
o Goes with clear statement ruleif Congress is going to alter balance of
Constitutional power between states and federal government, then it needs
to state so clearly, which it did not do here
o So, Court will construe the statute not to include judges without a plain
statement as such, and thus ADEA does not apply
o White (concurring in the judgment and dissenting in part) say that this
canon is unworkable, and that judges are in fact policymaking appointees
so they fit within the exception in this statute
o What sort of state activities fall within the scope of the rule? How do you
o Does this apply only to ambiguous statements, or to everything?
o If this is protecting a constitutional value, is said value valid? Does the
Constitution really embody a freestanding commitment to federalism?
o Even if Constitution does embody federalism, is federalism that worth
o If justification is improving the legislative processis that really true?
Does Congress/their staff really pay any attention to this?

Presumption Against Preemption

Preemption idea that the federal govt does not preempt state law unless its
really clear that it wants to
Preemption comes from Supremacy Clause
Very hard to predict how these cases will come down
Express preemption Congress explicitly says state law is preempted obviously
not tough
Implied preemption tougher
o Conflict (impossibility) preemption statute doesnt say anything, but
theres an irreconcilable conflict between the laws, such that its
impossible to comply with both of them


o Obstacle preemption enforcement of state law would frustrate or

obstruct the purposes of the federal statute
o Field preemption federal regulation is so pervasive that federal
government has expressed its desire to occupy the field
Presumption against preemption not as robust as clear statement rule
Application Rice v. Santa Fe Elevator Corp.
o Question as to whether federal regulation preempts state regulation court
says it will require a clear statement to preempt state functions, and finds it
herefield preemptionregulation so pervasive that it was intended to
preempt state functions
Application Cipollone v. Liggett Group, Inc. (1992)
o Cipollone was a lifelong smoker and sued under state common law;
question as to whether her suit was preempted by Federal Cigarette
Labeling and Advertising Act
o Act prescribed labels on cigarettes, and said no requirement under state
law can be applied to labels, and part of Cipollones suit is failure to warn,
so is claim preempted
o Court basically says that this is preemptionsuch a clear statement as the
one above is preemption, so claims preempted
o Presumption against preemptionScalia (dissent) thinks its an ironic
result that there is a clear statement of preemption actually reduces whats
preemptedimplied preemption is much wider than express preemption
Application Altria v. Good (2008)
o Court is extremely clear that there is a presumption against preemption,
both express and implied, and that it should be applied to even areas where
federal govt had traditionally regulated
o Where text of preemption clause is unclear, apply the plausible reading
that does not preempt
o Here, Labeling Act is considered to be unclear enough that it might not
preempt state tort law on cigarette labeling
o Dissent says that this is unworkable; just say Congress preempted any law
that imposes an obligation based on effect of smoking upon health
Since Riegel v. Medtronic, Court now says that state common law duties are
o Extremely confusing and impossible to predict which way these cases will
come down
o If statute has express preemption, how broadly or narrowly should courts
read it? Do you still put the thumb on the scale?

2) Constitutional Structure and the Regulatory State


Introduction to Administrative State and Delegation (J.W. Hampton)

Separation of Powers

Standard account assignment of certain powers to certain branches impliedly

preempts the exercise of those powers by other branches
o Otherwise, why take the trouble to assign them?
Structural evidence
o Of separation
Each branchs role in selection of others is minimized
Ability of branches to remove another is limited and cumbersome
Congressional control over salaries of other branches is limited
Incompatibility clause cant serve in two branches at once
o Of blending
No explicit design in Constitution to assign certain powers to
certain branches, or at least not to do so strictly
President participates in legislative process (veto), Senate
participates in judicial (veto), Appointments Clause
Formalism vs. functionalism
o Formalism
Draws relatively sharp lines of demarcated power between the
branches; cant tread on one another
Unconstitutional for Congress to transfer powers from one branch
to another
Constitutional meaning fixed
o Functionalists
Leaves a great deal undecided; no overall plan beyond the vaguest
principles for structure of the government
Congress has broad authority to determine shape of govt pursuant
to Necessary and Proper

Arguments in favor
o Various agencies have specialized expertise that makes them more capable
of setting effective policy than Congress/the courts
o Also agencies are more divorced from political realities
Counter is that agencies obviously take politics into accounts duh
o Agencies are a necessity in modern society, and the alternatives not
passing laws that we need or delegation to the courts are far worse
Arguments against
o Rejects/argues against fundamental commitment to separation of powers
o Vesting Clause all legislative powersshall be vested in [the]
Congress argues that Congress cannot delegate that power
But necessary and proper might allow Congress to delegate its own
Even if it vests legislative power, that does not necessarily mean
said power cannot be transferred
Unclear that agencies exercise legislative power

o Violates bicameralism and presentment

o Supposed to be difficult to make laws, so greater agency flexibility is not
really an argument for delegation
May understate importance of desirable government action
o Anti-democratic to say regulatory policy decisions need to be insulated
from politics
o Delegating to agencies allows legislators to evade accountability for
politically unpopular decisions
J.W. Hampton, Jr. & Co. v. United States (1928)
Question as to whether presidents power to adjust tariff duties to equalize costs
(as delegated by Congress) is constitutional
Court holds that its constitutional; test here is intelligible principleif theres
an intelligible principle, the executive is not exercising legislative power this is
the key takeaway
o Essentially, Congress may not delegate the power to make laws, but can
only delegate power to make policies and rules that implement its statutes
Rationalepartially textualvesting clause, necessary and proper clause, but
Prof. Halligan thinks functionalism carries the day

Nondelegation Doctrine (Schecter Poultry; Whitman; Benzene)

Nondelegation Generally
Per Cass Sunstein, has had one good year and 211 bad ones (and counting)
Court really has washed its hands of thissee e.g. Whitman
A.L.A. Schecter Poultry Corp. v. United States (1935)
Live poultry code; what amount of discretion under NIRA to Department of Labor
allows executive to prescribe codes of fair competition for any industry
basically allows him to regulate the economy as he sees fit
Only constraints are that the codes effect the policy in Title I of the act and that
the associations not imposes restrictions on admission to membership or permit
monopolies or monopolistic practices
Why is this a bridge too far?
o Authorizes the executive branch/trade associations to create their own
legislationconveyed legislative power to the executive branch
o Even more than that, it conveys that same power to the industry groups
o Fair competition is too vague a phrase to provide the president with an
intelligible principle
o Even though FTC act also uses a similar phrase, it has a set of
administrative procedures as safeguardsCongress set up a commission,
and you could file a formal complaint and have a hearing, etc.the NIRA
has no such procedure
o Scope of the statute is too largecovers literally the entire economy


Unranked goals in purpose of statute are actually somewhat more confusing

executive would (theoretically) have no way to differentiate between which
policies should be effectuated and which priorities should be prioritized
Cardozo concurrence here in effect is a roving commission to inquire into evils
and upon discovery correct them thats a bridge too far basically thinks the
NIRA essentially allows Pres to exercise all powers under the Commerce Clause
This is the last occasion on which the Court has invalidated an act of
Congress as unconstitutional on nondelegation grounds

Whitman v. American Trucking Associations, Inc. (2001)

EPA supposed to set up NAAQSbasically national air quality standards for
various types of particulates, chemicals in the air
Supposed to set standards based on criteria [documents provided in 108] and
allowing an adequate margin of safety which are requisite to protect the public
Difficult question here is that EPA must use these extremely vague standards to
set extremely precise measuresso how can it defend its decision for .07 instead
of .08 based on statute?
Court basically says that there is an intelligible principle here, and thats all that
o Bit of an argument about judicial incompetence to assess how much
delegation is too much delegation
Thomas, concurringthinks some stuff is too important to be delegated, but no
principle on how to tell this
Stevens, concurring in judgmentwants to emphasize that this is really an
exercise of legislative powerlegislature can delegate its power, and it did so
here; if this was done by the legislature, we would call it an exercise of legislative
power, so might as well call a spade a spade
Most commentators have interpreted this as the Court washing its hands of
Industrial Union Department, AFL-CIO v. American Petroleum Institute (Benzene Cases)

Acting under authority of the Occupational Safety and Health Act of 1970, the
Secretary of Labor, after having demonstrated a link between exposure to benzene
and leukemia, set a standard reducing the airborne concentrations of benzene to
which workers could be exposed. The standard reduced the allowable amount
from 10 parts per million (ppm) to one ppm. This case was decided together with
Marshall v. American Petroleum Institute.
o Statute said secretary could decide adoption of regulation reasonably
necessary or appropriate to provide safe or healthful (places of)
Did the Secretary exceed his authority to set standards?


Yes. Secretary had acted without knowledge that the new standard was necessary
to "provide safe and healthful employment" as mandated by the Act. Nothing in
OSHA's administrative record indicated that exposure to benzene at 10 ppm
would cause leukemia and that exposure to one ppm would not.
o Since the Secretary had not made a threshold finding that exposure to 10
ppm posed significant health risks, he was powerless to promulgate the
new standard.
o Must have conclusive evidence before allowed to regulate otherwise the
regulation is outside the allowance of the authorizing statute.
Saying that Agency has regulated outside of scope of the authorizing statute or not
in accordance with it is the most common way now of enforcing a non-delegation
principle without actually invalidating statute as an unconstitutional
Powell concurrence wants cost-benefits analysis as well
Rehnquist concurrence thinks this violates nondelegation
Marshall dissent thinks majoritys opinion is nondelegation without coming
out and saying it; says its impermissible for court to twist the statute in that way;
would just allow this
Congressional Control of Delegated Power (INS v. Chadha)

INS v. Chadha (1983)

AG has power delegated to him to suspend deportation proceedings for specific
individuals, but if he does so, either the House or the Senate can pass a resolution
saying alien should be deported; legislative veto
Holding legislative veto is unconstitutional
Basically legislative veto violates bicameralism and presentment; Congress is
exercising legislative power here, and, constitutionally speaking, an exercise of
legislative power must be accompanied by a bicameral vote and presentment to
o But with broad delegation, doesnt having a legislative veto actually
restore some of the legislative power to Congress?
Very formalist holding; idea is that Congress can make laws but cannot decide
how they are implemented
Powell concurrence dont get rid of legislative veto, but this is an exercise of
judicial power and thus violation of separation of powers
White dissent very functionalist; thinks legislative veto is a really useful tool
and court should not remove it from Congresss toolbox
Effectively, Congress can transfer lawmaking authority to bureaucrats but
cannot condition that authoritys use on its approval can only delegate,
cannot take it back
Other Forms of Congressional Control
Appropriations power of the purse Congress controls funding to agencies
o Can manipulate agency functions by attaching riders to bills

o Can increase or reduce agencys budget

o Control resources at agencys disposal
o Some agencies (e.g. Fed, CFPB) are budgetarily independent, so this
doesnt work
Hearings, Investigations, Audits
o Make agencies testify as to their behaviorpublic embarrassment
o Other stuff is pretty self-explanatory
Appointment and Removal: History (Buckley v. Valeo; Myers; Humphreys
Executor; Bowsher)

Buckley v. Valeo (1976)

Statute sets limits on campaign contributions and expenditures, puts in place
reporting requirements; statute administered by the FEC, question as to how FEC
is constitutedtwo voting members appointed by president, two appointed by
speaker of the house, and two by president pro tem of the Senate
Holdingofficer of the United States (which FEC members are) must be
appointed by President (per Constitution); these guys arent appointed by
President, so appointment procedure unconstitutional
Textual arguments to the contrarynecessary and proper clause, and also section
4authority to regulate electionsso they appoint, etc. here because Congress
controls elections
Very formalistic opinion
Also comes up with a test for who counts as an officer of the United Statesany
appointee exercising significant authority pursuant to the laws of the United
Statesthis basically comes from nowhere; very formalist opinion and then
theres this statement with no elaboration
Appointment clause exclusivity only President can appoint officers of the
United States
Myers v. United States (1926)
Question as to whether President is allowed to remove postmasters general
without Senate consentstatute says both appointment and removal is by the
President with the advice and consent of the Senate
Court says President can remove on his own, even though theres no removal
clause in the Constitution
o Textual argument vesting clause (puts all executive power in the
President), and if Congress wanted to limit that power they could
Also, take care clausepresident must faithfully execute laws, and
should be able to pick his own people to do it
o Textual counterargument is that Art II, 2 and 3 list out specific powers
that president hasso why list specific powers if he had all executive
power to begin with?


o Decision of 1789historical argumentfirst Congress allowed president

to remove Secretary of Foreign Affairs without consent of Senate, so this
is indication of what they thought removal clause entailed
o Argument against that is that it was actually an explicit provision that
would have allowed president to do that that was voted downso could
have been voted down because they didnt want president to remove
without Senate authorization or because they thought President already
had it
Could also make a functionalist argument here original understanding of Art. II
did not include plenary removal power, but rise of administrative agencies makes
it necessary
o This point could work both ways might make it more dangerous
Brandeis dissent thinks legislative power is broader than executive power,
and that Article I is more important than Article II
Holmes dissent Congress can create or destroy the office, so should be able to
condition removal

Humphreys Executor v. United States (1935)

Issue is whether President can remove a member of the FTC (an independent
agency) without Senate consent when statute establishing FTC only allows
removal for certain things
Basically Congress made it clear that it wanted agency and its heads to be
independent of the executive to a certain extent, and allowing President to remove
these officers at will would really hurt that
Test for an independent agencywhether or not the President can remove an
Distinguishes Myers by saying it was only applicable to a purely executive
officer, and that FTC commissioners are quasi-legislative/quasi-judicial people so
Pres. cant remove them without consent
One possible way of squaring this group of cases is that when Congress merely
places limits on Presidents power to remove, thats ok, but when they try to
aggrandize their own power (cf. Myers, Chadha, Bowsher) the Court will step in
and say nay nay
Bowsher v. Synar (1986)
Deals with Gramm-Rudman-Hollings Actquestion as to whether removal of
Comptroller in this act (by Congress) is constitutional
Basically, its executive power thats being exercised hereCongress
appropriates money and comptroller decides what can be spentand Congress
cannot retain checks on exercise of executive power except for impeachment
The Constitution does not contemplate an active role for Congress in the
supervision of officers charged with the execution of the laws it enacts
Constitution already provides for removal of members of other branches
(impeachment); anything beyond there for Congress is impermissible


While statute does limit removal to only being for certain reasons, said reasons
are broad enough that they can encompass almost any conduct
Stevens concurrence its legislative, but theres no bicameralism and
presentment so law is still unconstitutional
White dissent this is of really minimal importance to the legislative scheme and
does not present a threat to separation of powers; removal is fully controlled, and
thats just fine
Appointment and Removal: Modern Doctrine (Morrison v. Olson; Peekabo)

Morrison v. Olson (1988)

Independent Counsel statuteif Attorney General determines that people covered
by act violated federal law, he conducts a preliminary investigation; once he
completes investigation, he reports to a special court that will appoint an
independent counsel if the Attorney General believes that further investigation is
warranted; the counsel has all the powers of the attorney general within the
counsels sphere and can only be removed (basically) for good cause or condition
that substantially impairs ability to perform the duty
Morrison subpoenas Olson, and Olson refuses to comply with the subpoenas
because he says Independent Counsel statute is unconstitutional because it
violates separation of powers and the Presidents appointment and removal
Court concludes that Morrison is an inferior officer for four reasons:
o Can be removed by higher executive officer
Scalia disagreessays counsel is not inferior because inferior
means subordinate to someone, and good cause is too strong a bar
to subordination
o Limited dutiesonly investigates the one issue
o Limited jurisdictioncan only act within scope of jurisdiction granted by
the special court
o Limited in tenureoffice lasts only as long as investigation
o These are the Morrison factors; if dealing with inferior/principal
officer issue, pay attention to these
Court articulates a new test for determining whether removal restriction is
permissible; new test is whether the removal restrictions are of such a nature
that they impede the Presidents ability to perform his constitutional duty
o Important in there is the aggrandizement of Congresss power vs.
encroachment on the Presidents removal power distinctionif it merely
encroaches, its ok generally
Majority doesnt think this will impede the Presidents ability, etc. because:
o Good cause removal restriction allows President to get rid of special
counsels for impairment, etc.
Justice Scalia thinks executive power is unitary, as opposed to bicameral, which
means that executive power should be held in one place


o Practically, hes concerned about the fact that someone who takes this job
is essentially signing up to prosecute a specific personso of course
theyre going to be zealous, and theres no real protections
Justice Scalia feels unitary executive/separation of powers is so profoundly
important because it screws up democratic accountability when you dont have it,
and because president needs to have executive policy be consistent, etc.he
thinks it is legally incorrect and practically a really bad idea

Edmond v. United States (1997)

Question as to whether judges on Coast Guard Court of Criminal Appeals were
inferior officers; all Morrison factors counseled against them being inferior except
that they subject to superior officers because:
o JAG (subject to SecTrans) could prescribe rules and procedures for them
o JAG could remove them without cause
o CAAF reviews every decision of the CGCCA where there is a) death
sentence b) JAG decision to review or c) CAAF itself grants review
So, question as to whether this has replaced four-part Morrison test with the one
part supervision/inferior test that Scalia advocated in dissent in Morrison
o If so, where does that leave someone like the Solicitor General?
Free Enterprise Fund v. Public Company Accounting Oversight Board (Peekaboo) (2010)
Statute passed to impose controls on accountants after Enron crisisSEC
commissioners are removable only for cause, and the PCAOB is subordinate to
them and are only removable for causedual for-cause restrictions
Majority basically says that if the SEC was removable at Presidents discretion, or
if PCAOB were removable at SECs discretion, it would be ok, but a dual forcause restriction is too muchconstrains removal power too completely
Also concerned about slippery slope how many layers of bureaucratic insulation
can Congress put in if this is allowed?
Breyers dissent is purely functional, whereas Robertss majority decision is
almost entirely formalist

Presidential Control of Agencies (Various OIRA Stuff)

Presidential Control of Agency Actions

Ways Presidents Can Exercise Control Over Agencies
o Appointments and removal
o Budget requests through OMB
o OMB and OIRA review
Where does authority come from?
o Take Care clause
o Vesting clause/unitary executive theory
o Opinions clause
Is regulatory review that 12886 and its ilk establishes a good idea?


o Yes

Clinton did it, and Reagan did it, and Bush did itso nonpartisan
people think its a good idea
Introduces political accountability into the processthough the
counter to this is that most people have no idea what OIRA is
Agencies systemically inclined towards overregulationnot doing
things is never an option normally, and this helps with chilling that
Agencies captured? Maybe regulated groups have captured

o No
May lead to too much emphasis on regulatory costs
May lead to too much emphasis on politics
May delay important regulations
OIRA head not likely to have substantive expertise in areas in
which the agencies operate
Cant really challenge OIRAs review in court
Provisions in orders that require agencies to submit their regulatory agenda are
these ok?

3) The Regulatory Process and Judicial Review of Administrative Action


Introduction to the APA (Florida East Coast Railway)

The APA Generally

The APA is a quasi-constitutional statute theres a lot of room for interpretation
Very much a framework
Section 559 APA doesnt repeal additional requirements otherwise imposed by
law, and a subsequent statute cannot supersede or modify APAs procedural or
judicial review requirements unless it does so expressly
Generally, courts have felt relatively free to adapt the APA to changing
Forms of Administrative Action Under the APA
o Governed by 5 USC 551; defined as an agency statement of general or
particular applicability and future effect designed to implement, interpret,
or prescribe law or policy describing the organization, procedure, or
practice requirements of an agency (551(4))
o Any authoritative agency action other than a rule defined as a final
disposition, whether affirmative, negative, injunctive, or declaratory in
form, of an agency in a matter other than rule making but including
o Agency process for formulation of an order is an adjudication
Both of these categories can be formal or informal

Formal/Informal Rulemaking
Formal Rulemaking
o Formal rulemaking is governed under procedures laid out in 556/557
o Required if agency rule in question [is] required by statute to be made on
the record after opportunity for agency hearing (553(c))
o Provide for an adversarial hearing where proponent of rule carries burden
of proof and must show that proposed rule is supported by reliable,
probative, and substantial evidence
o Hearing presided over by Administrative Law Judge
o Final rule must be based on record promulgated in hearing
Informal Rulemaking (notice-and-comment rulemaking)
o Governed by 553 of the APA
o Three main procedural requirements:
Must give public Notice by publishing NPRM in Federal Register
NPRM must include statement of time, place, and nature of
public rule making proceedings, reference to legal authority
under which rule is proposed, and either terms or substance
of proposed rule or description of subjects and issues
Agency must provide public with opportunity to comment on
agencys proposal
If agency decides to promulgate a rule, it must publish an
explanation of rule (incorporate in the rules adopted a concise
general statement of their basis and purpose)
o No requirement that a final rule be based on any record compiled during
the proceedings
Today, the vast majority of rulemaking is informal (thanks to Florida East Coast);
really the only exception is when statute requires formal rulemaking
Formal/Informal Adjudication
Formal adjudication
o Governed by 556 and 557
o What people think of when they think of agency adjudicationstrial-like
adversarial hearings that involve an agency seeking to impose some sort of
penalty on a regulated party or attempted to resolve a dispute between two
or more parties under a regulatory scheme
o Formal adjudications require an opportunity for oral presentation (except
in cases involving claims for money or benefits or applications for
Informal adjudication
o No section of APA that deals with this directly; inferred from the text
o Minimal procedural requirements


Rulemaking and Adjudication Compared

o Prospective does not have retroactive applicability
o Can deal with an entire industry or one particular party no restriction
o Advantages
Prospective as opposed to retrospective (generallyadjudications
can have prospective application as well)
Because it involves NPRM, etc., you get a much wider swathe of
o Disadvantages
More subject to agency capture and delay
Applies to a broader class than adjudication does, so harder to test
something out
o Essentially an exercise of judicial power look at facts of a given case and
make a decision
o Essentially retrospective in nature, though it can have prospective effects
o Three categories
Regulatory cases e.g. rate-setting, licenses
Entitlement cases e.g. applications for social security disability
Enforcement cases with entities like the SEC
o All involve issue of past conduct with disputed facts
Generally, its pretty easy to tell when rulemaking is required vs. when
adjudication is required
When Is Formal Rulemaking Required? United States v. Florida East Coast Railway
Company (1973)
Freight companies want an ICC ruling set aside because ICC failed to comply
with APA; state that ICCs statute only allows it to establish freight car rates after
hearing, and that they didnt get a chance to make oral submissions at the
hearing, which would violate 556 and 557 question as to whether the hearing
in ICCs statute needed to be a formal one
Court says no; had already construed that to not require a formal hearing in
Allegheny-Ludlum, and language saying that ICC needed to consider certain
factors was not a reversal of thatICC can consider factors just as well in an
informal setting
Florida East Coast also intended that hearing within the meaning of the ICC
statute was more than just the procedures listed out for informal rulemaking in
o Court says nothough APA requires adherence to previous statutes, think
its perfectly acceptable to interpret requirement in ICC as being similar to
APA because the relevant part of this statute was passed after APA


Court basically says that there is a distinction between prospective rules that
affect all parties in an industry and proceedings that adjudicate disputed facts in
particular cases; here, this is a prospective rule, so oral argument not necessary
o Upshot of this is that unless a statute basically uses the exact words
contained in the APA as to when formal rulemaking is required, court will
not construe it to require formal rulemaking
Douglas dissent thinks this is due process violation; this is essentially a rate
order, and thinks cant saddle people with that without a full hearing
Book says concern about overproceduralization animates the case Court doesnt
want agencies to get bogged down
Informal Rulemaking (Nova Scotia; Choc. Mfrs. Assn)

United States v. Nova Scotia Food Products Corp. (2d Cir. 1977)
FSA is concerned about botulism, so they promulgate a regulation as to how long
and how hot fish have to be cooked and salinity for cooking; whitefish
manufacturers say that cooking their fish that long is not commercially viable
Note that this is an enforcement proceeding, and not a direct challenge to the rule
Three challenges:
o Beyond authority delegated by the APA (rejected, irrelevant)
o FDA improperly relied on undisclosed studies in formulating regulation
o No adequate statement setting forth purpose and basis of regulation
Court says that FDA must disclose the studies it relies on; otherwise Nova would
not have a reasonable opportunity to comment and concise general purpose would
be inadequate
o When basis for proposed rule is scientific decision, scientific material
which is believed to support rule should be exposed to view of interested
parties for their comment. One cannot ask for comment on a scientific
paper without allowing the participants to read the paper.
Also says FDA needed to respond to Novas comments on commercial feasibility
of regulationmajor issues need to be commented on
o Basically, if you can just ignore vital comments then the concise general
statement would not be an adequate safeguard against arbitrary decisionmaking, which courts must reverse under 706 of APA
o Agencies must address comments that raise questions of cogent
Basically, opportunity to comment is construed here not in a narrow sense but in a
broad senseinterested parties must have a meaningful opportunity to comment
Adverse consequences of move to paper hearing
o Judges procedural rulings are outcome-driven
o Expanded proceduralization may favor those affected interests with
greater ability to mobilize resources to provide more or better information
to rulemaking agency disadvantages the little guy
o 553 now overproceduralized rulemaking too cumbersome, costly, and
lawyer-driven, which undermines flexibility of agency

Rybacek v. EPA (1990) and Ober v. EPA (1996) how can they be distinguished
o Agency, during rulemaking comment period, solicited new information
and then denied the opportunity to comment when it finalized the rule and
included additional material in response to initial comments
o Petitioners cannot comment on new material
o Court says additional material was agencys response to comments made
during a public-comment period; they can add supporting documentation
o Concern that if agency is required to allow comment on new rule, could
trap agency in endless cycle of comment changes in response to
comment comment etc.
o Same facts, basically, but EPA solicited facts from a third party
o 9th Cir. distinguishes from Rybacek on that grounds says that stuff in
Rybacek was EPAs internal response to public comments, but that Ober
involved new information solicited from third party
Chocolate Manufacturers Association v. Block (4th Cir. 1985)
At issue here when does agency have to provide supplemental notice e.g.
when agency decides to change a proposed rule, when must it allow parties a new
opportunity to comment
WIC programbasically providing federally funded food and drink to people
takes a close look at health and decides it wants to eliminate sugary stuff
Original rule proposed specifically includes flavored milk as a food that would
continue to be eligible for WIC program; there were some comments from local
WIC supervisors saying flavored milk should be eliminated
Post-comment, Dept. of Agri. decides to eliminate flavored milk, and Choc.
Manu. Assoc. sues to say that they are violating 553they dont have an ability
to comment on this particular rule because this drastic a change was not
contemplated in original rule
Basically court doesnt think that Choc. Manus. didnt get a fair opportunity to
comment because new rule was so drastically different with no indication
Thinks that agencys original proposal was replaced by one that reached the exact
opposite conclusion, based on comments from only one set of parties representing
a single view of the controversy
Court adopts a logical outgrowth testnotice is adequate if changes in the
original plan are in character with the original scheme and the final rule is a
logical outgrowth of the notice and comment already given
o Does this give agencies an incentive to be vague, so that lots of things
could be logical outgrowths?
If initial notice is too vague, court might deem it inadequate
Practically, agency wants rulemaking process to be efficient, and
vagueness would not help with that



Alternatives to Rulemaking: Adjudication (Chenery; Bell Aerospace)

Central question when must agency make prospective rules through rulemaking,
vs. promulgating a general policy through an adjudication
Issue is that adjudication seems to be limited to the facts before it, but can have
prospective effectsjust like courts

SEC v. Chenery Corp. (Chenery II) (1947)

Chenery Co. required to reorganize under Public Utility Holding Act of 1935;
issue is that SEC did not want to approve reorganization plan promoted by
company; eventually, corporate owners buy up a bunch of common stock so they
retain control of company after reorganization
SEC initially redoes the plan saying that established equitable standards banned it;
this is challenged in Chenery I
o Court did not allow it to pass said that there was no existing equitable
standard of that nature
o SEC proffered an alternative rationale, but Court refused to consider it
important principle a court reviewing an agency action will consider
only the basis for that action proffered by the agency in the rule or order at
issue; cant do an ad hoc justification
After losing Chenery I; SEC reissues same order, this time stating that it would
effectuate the principles of the statute at issue (PUHCA)
Question is whether SEC can announce this sort of principleconflict-of-interest
or whateverfor the first time in adjudication
If youre representing Chenerysay everything they did was lawful and aboveboard, and now the SEC is trying to come in and make that conduct illegal
retroactively, and this should not be permitted
o Jacksons dissent makes that argument
o Other argument is that this collapses the distinction between rulemaking
and adjudicationit was intended to create a strict dichotomy, and the
majority is folding rulemaking into adjudication
Allows agencies to avoid procedural safeguards inherent in
Govts arguments would be that the agency is applying review to see if this is fair
and equitablethe text that Congress gave the agencyand those are flexible,
squishy words
o Also argue efficiency concernsflexibility to use adjudication where you
want is important because rulemaking is cumbersome
o Maybe case-by-case process of developing rule similar to common law
would be more beneficial
In terms of retroactivityCourt uses a balancing testbalance the mal-effect of
the retroactivity with the mischief of producing a result which is contrary to a
statutory design or legal/equitable principles


NLRB v. Wyman-Gordon Co. (1969)

Dont need to know detailsjust know that a majority of the court expressed a
skeptical attitude toward the use of administrative adjudication to announce
general rules
However, court walks that back in following case
Bell Aerospace Co. v. NLRB (2d Cir. 1973) (Friendly, C.J.)
NLRB had ongoing policy classifying buyers as managerial employees, meaning
they could not unionize; NLRB decides in an adjudication that buyers are not
managerial employees but that managerial employees can unionize anyways
question on appeal is whether NLRB can make that type of decision in
Friendly distinguishes from Chenery by basically saying that its not an issue of
first impression since the NLRB had already adjudicated that issue before; also
concerned that the agency is promulgating rules effective in all times and all
circumstances through one case
Argument for rulemaking especially strong when NLRB is reversing a
longstanding and oft-repeated policy on which industry and labor have relied
Difference between cases where agency cannot avoid a decision via adjudication
and cases where it uses adjudication to launch a new policy when it did not need
to this is the latter
Also thought from Wyman-Gordon is that if agency wants rule to apply only
prospectively it must engage in rulemaking
This decision is reversed
NLRB v. Bell Aeospace Co. (1974)
Reversal of 2d Cir. opinion above
States that it reaffirms both Wyman-Gordon and Chenery NLRB can announce
new principles in an adjudicative setting and the choice to do so is lies within the
NLRBs discretion
Though there may be cases where reliance on adjudication would amount to an
abuse of discretion, this is not one
o Because this has such wide effect, makes sense to develop these standards
on a case-by-case basis rather than in one fell swoop
Reliance on previous rules has not been shown to preclude NLRB from changing
its policy
o TO go against retroactivity, must how either a substantial adverse reliance
on past agency policy or imposition of a penalty for past conduct that was
consistent with then-prevailing policy
o Bowen v. Georgetown University Hospital established that there is a strong
presumption against reading an organic act to permit retroactivity
Scalia says in this case that rules have only future application,
which adjudication can have past and future inference from that
is that if rule applies only prospectively then it must be done by
rulemaking (this can also be inferred from Wyman-Gordon)

Yes, rulemaking would give wider views, but NLRB had discretion to decide that
adjudication would also produce the relevant views

Alternatives to Rulemaking: Agency Policy Statements and Interpretive Rules

(Pacific Gas & Electric; Chamber of Commerce v. Department of Labor;
American Mining Congress)

Exceptions to Notice and Comment Requirement for Rulemaking

Matters pertaining to a military or foreign affairs function of the United States
Matters relating to agency management or personnel or to public property loans,
grants, benefits, or contracts (553(a)(2))
Interpretative rules, general statements of policy, or rules of agency organization,
procedure, or practice (553(b)(A))
When agency for good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to public interest (553(b)(B))
First two above are uncontroversial; the last two are exceedingly controversial
Good Cause Three Sets of Circumstance Where Invocation of Exemption is Proper
If rule in question is a routine determination, insignificant in nature and impact,
and inconsequential to the industry and to the public
o Narrow exception; limited to cases where there is no controversy at all
about the rule
If there is some kind of emergency situation that makes the delay associated with
notice-and-comment intolerable
o Example new FAA regulations post-9/11; upheld in Jifry
o Must be genuine emergency where substantial harm will be caused by
delay (Hawaii Helicopter Operators Assn)
o Agencies that invoke this exception usually say that initial rule is
temporary, and initiate normal notice-and-comment process using interim
rule as proposed final rule
Some courts have held that temporary status is necessary to uphold
final rule
If rule would be contrary to public interest because advance notice of the
proposed rule would prompt undesirable anticipatory behavior by affected parties
o Particularly relevant to price-control regulations
General Statements of Policy
Not defined anywhere in the APA, and leg. history doesnt help
Basic idea an agency policy statement is an agency memo, letter, speech, press
release, manual, or other official declaration by the agency of its agenda, its
policy priorities, or how it plans to exercise its discretionary authority
Pacific Gas & Electric Co. v. Federal Power Commission (D.C. Cir. 1974)

Background country facing natural gas shortage; question as to whether

pipelines should curtail service on basis of existing contractual commitments or
on basis of most efficient end use of the gas
Agency promulgates (in what it calls a policy statement) what it considers to be a
proper priority schedule and states that national interest would be best served by
curtailment based on end use; also states agency will follow priority schedule;
question as to whether this is a policy statement or instead needed to go through
notice-and-comment rulemaking
Court says general statement of policy presages an upcoming rulemaking or
announces course agency intends to follow in upcoming adjudications
General statement of policy does not establish a binding norm; it is not
determinative of issues to which it is addressed, and agency cannot apply or rely
upon a general statement of policy as law
When agency states that it will consider not only policys applicability to the facts
(like it was a rule) but also policys soundness as a whole (unlike a rule), then its
a policy
Conclude this order is a general statement of policy because:
o Stated purpose was not to be an inflexible, binding rule but to give
advance notice of curtailment policy that agency preferred agency will
proceed through adjudication in following that policy
o Unlike Columbia Broadcasting, no immediate and significant effect on
plaintiffs business; abrogation of contractual commitments will only
occur after individual curtailment plans filed and approved by agency,
with all interested parties being allowed to present their case
o And in Columbia Broadcasting, order had binding force of law; not true
Two different questions here, two different standards does the agency policy
have force of law and does the agency anticipate adjusting its policy decisions
to circumstances of individual cases?
o Question as to whether second question is legitimate if agency has legal
ability to act inflexibly, then why should it matter for judicial review
Most challenging cases are those where policy statement does not have a legally
binding effect but nonetheless cabins the discretion of the agency and/or exerts a
coercive effect on regulated parties

Chamber of Commerce v. Department of Labor (D.C. Cir. 1999)

OSHA issued a directive pursuant to which each employer in selected industries
will be inspected unless it adopts a comprehensive health and safety program
designed to meet standards that in some respects exceed those required by law;
question is whether this was a valid policy statement
While this does not establish a binding legal norm, its still invalid
Whether a rule is a policy statement is determined by whether
o (1) it has only a prospective effect; amd


o (2) leaves agency decisionmakers free to exercise their informed

discretion in individual cases
Because every employer not complying will be inspected, this is not tentative; it
announces a decision already made
OSHA admits in its brief that inspection plan leaves no room for discretionary

Interpretive Rules
553(b)(A) exempts interpretative (interpretive) rules from notice-and-comment
Interpretive rule is declaration of how an agency interprets an ambiguous statute
or regulation
American Mining Congress (AMC) v. Mine Safety & Health Administration (D.C. Cir.
Whether Program Policy Letters of the MSHA stating agencys position that
certain x-ray readings qualify as diagnose[s] of lung disease within the meaning
of agency reporting regulations are interpretive rules
Four-part test for whether rule is interpretive rule has legal effect, and is
therefore not interpretive, if:
o in the absence of the rule there would not be an adequate legislative basis
for enforcement action or other agency action to confer benefits or ensure
the performance of duties;
o the agency has published the rule in the Federal Register;
o the agency has explicitly invoked its general legislative authority; or
o the rule affectively amends a prior legislative rule
Here, agency is basically filling in the blanks a term in a statute required a
definition, so agency it defined; it still could have done enforcement actions
without the definition, and did not invoke its legislative authority or publish in the
federal register
Only real issue is whether it amends a prior legislative rule; answer is no; a rule
does not become an amendment simply because it supplies crisper and more
detailed lines than the authority being interpreted (otherwise all interpretations
would require notice-and-comment)
Big issue here is that its really difficult to tell the difference between lawmaking
and law implementationwhen does a definition/interpretation change the law?

Judicial Review of Agency Procedure and Policy (Arbitrary and Capricious Stuff)
(Ethyl Corp.; Vermont Yankee)
Courts can compel agency action unlawfully withheld or unreasonably delayed
o These orders are pretty uncommon
Courts also required to hold unlawful and set aside agency action, findings, and
conclusions found to be:

o arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law (706(2)(A))
most of the action is here
o contrary to constitutional right, power, privilege, or immunity (706(2)(B))
o in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right (706(2)(C))
o without observance of procedure (706(2)(D))
o unsupported by substantial evidence in a case subject to sections 556 and
557 of this title or otherwise reviewed on the record of an agency hearing
provided by statute (706(2)(E))
unimportant for our purposes
o unwarranted by the facts to the extent that the facts are subject to a trial de
novo by the reviewing court (706(2)(F))
rarely invoked
Arbitrary and Capricious Development of the Law
Difficult question want to insure agencies dont have untrammeled authority but
also dont want judges to interfere excessively
o Do judges have the subject-matter expertise for this?
For first two decades, standard for arbitrary and capricious was extraordinarily
deferential if you could come up with any set of facts that would validate
agencys decision, that was enough (Pacific States Box & Basket)
60s more calls for more aggressive judicial regulation of agencies
Leventhal D.C. Circuit advocates a hard look approach agencies must
have carefully considered all relevant aspects of the problemthat is, had taken a
hard look at the issuesand exercised their discretion in a reasonable manner
o Idea is that as long as agency has taken a hard look, its decision will be
upheld; combines judicial restraint with supervision where necessary
Bazelon also D.C. Circuit wants arbitrary and capricious to be based on
whether the agency employed procedures that were conducive to reasoned
o Basicaly, courts are experts in procedure, and they can tell whether
procedures are such that a decision is not arbitrary and capricious
Overton Park v. Volpe (1971) Supreme Court starts to define doctrine
o To make an arbitrary and capricious decision, reviewing court must
consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment
o Inquiry is searching and careful, but narrow; court cant substitute its
judgment for the agencys
o Confused standard consideration of relevant factors sounds somewhat
procedural, but clear error of judgment sounds more substantive
o Debate spilled over to DC Circuit in:
Ethyl Corp. v. EPA (D.C. Cir. 1976)


Key question here is that gasoline additive makers say that agencys decision to
ban lead fuel additives was arbitrary and capricious
Panel (Wilkey) says agencys decision is arbitrary and capricious because it was
not supported by evidence
Reheard en banc; views:
o Judge Skelly Wright
Not arbitrary and capricious if it is based on a consideration of
relative factors and there is evidence that is suggestive of the
decision being right
Basically wants rational basis review if you can see a basis in the
evidence for agencys decision, then its ok, as it was here
Agency allowed to make explicit or implicit assumptions not
supported by direct evidence
Decision arbitrary if no reasonable person, confronted with
evidence before the agency, could reach conclusion agency did
o Judge Wilkey
Articulates a basically similar standard, but disagrees with Judge
Wright on the application
Wilkey thinks that if there is a gap in the chain of reasoning, its
dispositive that agencys decision was arbitrary and capricious
Compare to mathematical proofmisses a link in chain of
Decision arbitrary if it relies on unstated or unsupported inferences
Positivemakes agencies think through objections that have been
raised in a very positive way
Negativeunclear as to whether this standard is consistent with
text of 706is agency really required to prove its policy?
o Chief Judge Bazelon
Thinks that courts simply lack the ability to accurately judge
technical cases like this
Thus, courts should focus on whether procedures were adequate
The process making a de novo evaluation of the scientific
evidence inevitably invites judges of opposing views to make
plausible-sounding, but simplistic, judgments of the relative weight
to be afforded various pieces of technical data
Somewhat supported here in that two sides come to
opposite conclusions on whether agencys decision is
arbitrary and capricious
o Judge Leventhal
Thinks Bazelon is wrong
Says an abandonment of substantive review is entirely
Restraint yes; abdication no.


Vermont Yankee Nuclear Power Corp. v. NRDC, Inc. (1978)

Supreme Court delivers its opinion on the validity of Bazelons views; its not
impressed (7-0 benchslap, for the record)
Atomic Energy Commission rulemaking complies with 553goes beyond 553, in
allowing oral argument, so on
NRDC doesnt like rule promulgated, so suessubstantively and procedurally
DC Circuit says AEC employed defective proceduresfocuses on absence of any
cross-examination of agency officials, S.Ct. unanimously reverses; additional
procedural requirement goes beyond APA, which DC Circuit lacks the authority
to do
Court disregards Bazelons views for several reasons:
o Would make judicial review to be completely unpredictableparties
would be at the mercy of the courts decision on procedures, and this
would totally disrupt the statutory scheme
o Monday morning quarterbackingevaluated rulemaking on record
produced at hearing, not on the info available to agencyinevitable that
agencyd be missing some information when it decided on procedures, and
unfair for court to make decisions based on that missing information
o Fundamentally misconceives the nature of the standard for judicial review
of an agency ruleinterferes with policies provided by Congress
o Court will typically assume that additional proceduresespecially those
that give interested parties more of an opportunity to participatewill
always produce a better record for review
Black letter agency procedures are adequate as long as they meet the
statutory minima prescribed by APA and agencys own regulations
Court thinks DC Circuit substituted its policy preference for the agencys
Overton Park still good law after Vermont Yankee (Ginsburgs analogy in
Occidental Petroleum Corp.)
o Overton Park established a performance standard in order to allow
meaningful judicial review, agency must produce an administrative record
that delineates how it got there
o Vermont Yankee proscribes design standards cant tell the agency the
specific procedural steps it must follow to meet that performance standard
o Similar distinction endorsed by Supreme Court in Pension Benefit
Guaranty Corp. v. LTV Corp. (1990)

The Hard Look Doctrine (Modern Arbitrary and Capricious) (State Farm)
Modern arbitrary and capricious review follows the standard set out in the case
belowadopts and expands Overton Parks concept

Initial NPRM 46 FR 21205


Issue is what particular safety standards to prescribe for cars airbags, auto
seatbelts, or manual seatbelts
Laid out three options
o First two are switch-ups and delays in timing
o Rescission option is the third one
Agency concernedreopening rule and revisiting it because they are concerned
about public rejection of rule and because manufacturers/insurance companies are
Becomes clear that car manufacturers will only use automatic belts; wont be
using airbags, but public hates automatic seatbeltswill seriously hurt your
utilization rates

Final Rule 46 FR 53419

Agency decides to rescind the rule; gives several reasons
o Wasnt a study that addressed effect of only having an automatic seatbelt
o Also unclear as to whether theres public acceptance of these regulations
o Could make public resistant to all regulations
However, statute doesnt appear to state that public acceptance of the regulation is
particularly importantgood argument that it is useful, good argument that its
Resolution Motor Vehicle Manufacturers Association v. State Farm (1983)
Extremely big case doctrinallythis is the black-letter law case as to how you
look at agency rulemaking
Question as to whether agency actions described above are acceptable
Case is cited for what arbitrary and capricious means:
o The agency must examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts
found and the choice made
o Arbitrary and capricious if it relies on factors Congress did not tell it to
consider (e.g. public acceptance here) or ignored factors Congress told it
o Did the agency entirely fail to consider an important aspect of the
E.g. how big of a deal is it that agency did not consider airbags?
Answer is very big dealcant just disregard a viable alternative,
this is one reason why the court invalidates this actionstates that
agency did not even provide an explanation as to why it rejected
Howeverexactly which alternatives must an agency consider?
Whats the limit?
How much consideration is necessary?
o Did agency offer an explanation that simply runs counter to the evidence?


This substantively upholds Overton Park court might strike

down agency actions as substantively irrational
o Is the action so implausible that it could not possibly be the product of
agency expertise?
o Does action bear some reasonable relationship to requirements/purpose of
the statute?
o Is it inconsistent with prior agency action with no explanation?
Question about whether agency has considered all of the alternatives
Agencys decision to change/rescind a policy should not be reviewed more
deferentiallyuse the standard outlined above
Rehnquist, concur/dissent agrees with stuff about airbags, but thinks that
invalidating on basis of not allowing automatic seatbelts is too farsays that
changed because of new political party, which is totally alright
Hard-Look Review Generally
o Principal justification is that its necessary to contain administrative
o Shadow of judicial review itself improves agency decision-making
o Judges dont have necessary technical background
o Can lead to bad judgments on the merits, based on misunderstanding of
technical stuff
o Because judges dont understand technical stuff, might just substitute their
own views
o Reasons offered in official agency statements bear little connection to
actual process of agency decision-making
But solution to this is just to require agencies to be honest
o Producing records is really costly
o Unpredictability of hard-look review makes agencies less likely to initiate
This is a good thing if you think agencies are systemically inclined
towards overregulation

4) Agency Interpretation of Statutes

Central question how do courts review the agencys interpretation of the statute
the agency is charged with administering?

Judicial Review of Agency Statutory Interpretation (Skidmore; Chevron)

Early View Skidmore v. Swift & Co. (1944)

About whether or not time employees spend waiting in firehouse at night entitles
them to compensation under FLSA
Skidmore deference merits deference to the agencys view, but only to the extent
that the argument manages to persuade

Relevant factors:
o Thoroughness evident in consideration of interpretation
o Validity of reasoning
o Consistency with earlier and later pronouncements
o All factors which give decision power to persuade
Is this a thumb on the scale? Yeah, its kind of persuasiveness, plus mindfulness of
special position and expertise of the agencynot Chevron
Know Skidmores out there, and know to think as to whether if Chevron isnt
available, Skidmore is

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)

This is the big one maybe most important case in admin law
Clean Air Act required states that hadnt met air quality standards only give
permits for construction of new pollution sources if they met LAIR
Issue in this case is focused on stationary sourcewhat does it mean? Is it each
individual smokestack or what have you, or is it a plantwide definitionone
power plant = one stationary source?
As NRDC whats your argument as to how the court approaches the review of
the administrative action
o Review as to whether the standard here is in keeping with the purpose of
the statute
o Also say EPA owes deference to its previous standard
o Under APA, courts decide questions of law
o Chevron Step 1 whether Congress has spoken to the precise question at
issue; if it has, then youre donego with what Congress said
o Chevron Step 2 if not, then whether agencys interpretation is within the
bounds of the statuteis agencys interpretation reasonable?
Note that the court doesnt question interpretive method herejust
whether interpretation is ok, doesnt matter how agency arrived at
said interpretation
How to determine what statute means per FN 9, use traditional tools of statutory
Step 2 how deferential is this? How does one determine whats a permissible
construction of the statute? Is there a difference between an express delegation
and an implicit delegation?
Here, court says statute was ambiguous
What are the normative justifications for this decision?
o Uniformitypromotes coordination in federal law
o Democratic accountabilitywant incumbent administration to have the
ability to change things so public can vote for things
o Allows flexibilityallows agencies to change its policies with the current
times, which hopefully leads to better outcomes



o Expertiseallows agencies to use their expertise, which should also lead

to better outcomes
What are the normative disagreements from this opinion?
o Judicial abdication of the responsibility to interpret the law
o Counter to accountabilityCongress may increase its delegation, and
agencies are less accountable than Congress
o Concentrates too much power in executive branch
o State Farm standard does not defer on policy, but this standard defers on
lawisnt that reversed?
What is the legal basis for this decision?
o Equate statutory silence or ambiguity with an explicit delegation of power
so use a much more deferential standard of review
Of course, could just as easily adopt presumption that Congress
meant for courts to resolve that ambiguity
o Kind of a pragmatic argument Chevron is the best solution, and we
presume legislators are reasonable people, so they probably meant to
choose the best solution
o Structural argument our democratic structure prefers policymaking by
democratically accountable agencies as opposed to non-democratically
accountable courts, so legislature must clearly state when it wants courts
to make policy, and courts should otherwise defer to agencies
Is Step 2 distinct from arbitrary and capricious?
o In both cases, court makes sure agency considered relevant factors
o But there are some decisions agencies make that are really tough to trace
to statutes they administer
Chevron and Textual Interpretation (MCI; Brand X; Sweet Home; Brown &
Most cases are decided at Chevron step 1, and you always (as a lawyer) want to
make a Step 1 argument
Central issue when is a statute ambiguous such that you can move on to Step 2?

MCI Telecommunications Corp. v. AT&T (1994)

Case about Communications Act; requires long-distance carriers to file tariffs
when they will raise their ratespurpose of provision is to require all downstream
companies to be treated equally
Question is whether nondominant carriers can be relieved from requirement to
tariff; FCC says they can, based on language in statute allowing them to modify
any requirement
o Really a question of statutory interpretation
If you argue for FCC, say that modify is ambiguous, and any requirement
suggests broadso you move the Chevron step 2, and this is permissible within
the statute

AT&T would argue that pretty much every dictionary around uses modify to mean
a very small change, and its a major change
o Additionally, text itself had a smaller feel
Is this really a modification?
o Scalia says this is not a modificationits more than that, as rate-filing is
a major part of a regulated industry, but does he really get to make that
o One wouldnt say the French Revolution modified the status of the
French royaltyequates a change like that with change contemplated by
Stevens, dissent says modify can mean what FCC wants it to mean, but more
importantly that Congress intended for FCC to have flexibility, Chevron intended
to preserve that flexibility, and this opinion cocks it up
Are textualist judges less likely to defer to agency constructions of statute? This
opinion (and empirical studies) suggest that they are
Doesnt the fact that a case made its way to the Supreme Court suggest that there
is at least some ambiguity? (Silbermans view)
o If a case is resolved at the first step of Chevron, one must assumea
petitioner has brought a particularly weak caseor the agency is sailing
directly against a focused legislative wind. Neither eventuality occurs very
o If you exhaustively seek meaning of statutes, dont you end up
undermining the normative values of Chevron?

NCTA v. Brand X Internet Services et al. (2005)

Question as to what telecommunications carrier means within Telecoms Act of
FCC interprets telecommunications carrier to exclude cable companies; litigation
over that
Key takeaway here is that the FCC can in effect overturn previous judicial
decisions 9th Circuit had interpreted this one way, FCC then promulgated
regulation in opposition to that interpretation, and 9th Cir. disallowed it on stare
decisis grounds Supreme Court lets that pass, says that court interpretation only
controls when its the only permissible interpretation, not the best interpretation
Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon (1995)
Statute to be construed what does take mean, in the sense of taking a
species, and what does harm mean in the definition
As Interior, argue that harm must mean something surplusage argument harm
would be surplusage if it didnt mean what Interior says it means
o Ordinary meaning of harm includes what EPA has done
Landowner harm should be given noscitur a sociis meaning, should be confined
to context of other words around it


o Dictionary meaning doesnt say whether its direct or indirect doesnt

resolve it could still be construed to require directness
Additionally, take has common law meaning as a term of art basically means to
remove a wild animal from its state of nature
Central debate here is how definitional provision interacts with actual usage of
take dissent (Scalia) thinks take trumps, while Stevens thinks definitional
provision is more important
Can make a purposivist argument purpose of act is to protect endangered
species, and if you want to protect endangered species you allow this
o Response proves too much just because something comports with
broad purpose of the statute doesnt mean its permissible textually
o Also say Section 5 allows you to pay for land to protect a species thats
the provision thats meant to protect habitats
Legislative history original draft didnt contain the word harm, and then it was
added, meaning it was supposed to add something substantive
o Begs question adding harm to list doesnt necessarily mean that you
added something with separate meaning
o Also argue that a definition of take which clearly included habitat
destruction was removed by the Senate Commerce Committee
Overriding questiongive the different meanings attached to this statute by the
Court, doesnt that argue in favor of deferring to the agencys interpretation?

Food and Drug Administration v. Brown & Williamson Tobacco Corp. (2000)
Question as to whether tobacco is a drug within the meaning of FDCA FDCA
says FDA can regulate drugs and defines drugs as articles other than food
intended to affect the structure or any function of the body
FDAs argument is that duh, nicotine is a drug, and that allowing this to be a drug
within the meaning of the statute fits the purpose
Brown & Williamson says that it doesnt fit with structure here if FDA could
regulate it, theyd have to ban it, and they cant ban it
o Dissents response is to say that there is plenty of discretion there FDA
can regulate safety as Secretary may prescribe, so can regulate sale of
tobacco in a way that makes public more safe without outright banning it
B&W also says that FDA over all these years had repeatedly disavowed
jurisdiction over tobacco, and Congress has legislated in that arenathe
disavowal has in effect been approved by Congress
o Breyer says Congress has not explicitly stripped jurisdiction which is
what matters
o Also argue that Chevron is designed to allow for change so
circumstances have changed, we now know tobacco is harmful, new
evidence towards health effects and industrys intent so we should allow
FDA to change its mind
Should agencies receive Chevron deference when they are interpreting the scope
of their own statutory jurisdiction?


o Some thinks courts decision in this case was animated by that concern
o However, Court in City of Arlington v. FCC (2013) held conclusively that
agency constructions of their own jurisdiction receive Chevron deference

Chevron and the Canons (DeBartolo; SWANCC)

How does Chevron affect canons of construction?

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades
Council (1988)
o What happens when an agency adopts an interpretation of ambiguous text that
raises serious constitutional questions when theres another interpretation out
there that doesnt raise those same questions
o Dispute with union workers; is handbilling coercion?
o NLRB says handbilling is coercion, and the union losesbut isnt that a restraint
on free speech? Does the NLRBs reading (if its entitled to Chevron deference)
trump the constitutional avoidance canon?
o NLRB says avoidance canon is grounded in Congressional intentso it trumps
o Court says NLRBs interpretation is reasonable, but that constitutional avoidance
trumps it for same reasons constitutional avoidance exists in the first place
o This isnt precisely always true Rust v. Sullivan court does address the
constitutional question, but theres a four-justice dissent over that says
theres a constitutional problem over this interpretation
o Just know that there is flexibility here
o Can justify prioritizing avoidance canon over Chevron as a means of narrowing
delegations of lawmaking power to agencies
o Counter is that it derogates executive branchs power to implement the law
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers
(SWANCC) (2001)
o Question is whether wetlands/temporary ponds used by migratory birds are under
the jurisdiction of the corps of engineersreasonable reading of the statute under
Chevron, but does it raise constitutional/traditional state functions concerns?
o Local government wants to create a landfill for baled waste into some ponds that
are just isolatednot connected to anything
o Corps of Engineers says no because the ponds are used by migratory birds
o Constitutional question is whether this exceeds the commerce power
o Court thinks the statute is clear at Chevron step 1 because SWANCC wins, and
that if they proceeded to Chevron step 2 they would apply constitutional
avoidance and still find for SWANCC
o One way to read it is that when an agency promulgates regulation that transfers a
ton of power from the states to the federal government, then deference is reduced
o Deference is not appropriate where an agency interpretation of a statute "invokes
the outer limits of Congress' power" - this concern is particularly strong where the


agency interpretation permits encroachment on a traditional state power - here,

that over land and water use
o Definitely some hesitation for Court to basically give Army Corps of Engineers
jurisdiction over random ponds throughout the United States
o Stevens dissent no need to apply constitutional avoidance/traditional state
functions; aggregated effect is clearly constitutional so Chevron, reasonable
reading, defer

Limits on Chevron (Mead Corp.)

Question as to what exact agency actions/interpretations of statutes are entitled to

Chevron deferenceMead Corp. supplies the answer
Christensen v. Harris County (2000)
o Dispute over proper interpretation of FLSA; opinion of Department of Labor
stated in an opinion letter; question as to whether that opinion merited Chevron
o Answer was no; opinions in opinion letters, policy statements, agency manuals,
and enforcement guidelines do not warrant Chevron; instead use Skidmore
United States v. Mead Corp. (2001)
o Does Chevron deference apply to interpretative rules, policy statements, informal
adjudications, advisory letters, amicus briefs, etc.?
o Question as to whether a tariff classification ruling by United States Customs
Service deserves Chevron deference; answer is no
o Administrative implementation of a particular statutory provision qualifies for
Chevron deference when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that
o That kind of delegation can be shown by:
o Agencys power to engage in adjudication or notice-and-comment
rulemaking (though want of this does not decide the case)
o Some other indicator of comparable Congressional intent
o No Chevron deference here because:
o Terms of delegation give no indication that tariff classification was meant
to have force of law
o Though this functions as precedent, that doesnt make a difference;
interpretive rules, for example, do not receive Chevron deference
o Treatment by agency classifications only binding between Customs and
the importer to whom it was issued
o 10,000-15,000 of these issued a year in those numbers are these really
all intended to have force of law?
o Scalia dissent identifies three bad consequences of this ruling:


o Protracted confusionno one will know what is actually entitled to

Chevron deference
o Artificially induced increase in informal rulemaking agencies will go
through this even when they dont have to in order to insure their rulings
receive Chevron deference
o Ossification of statutory law this concern obviated (though who knows if
that was a good idea) by Brand X
o Says that each individual tariff did not have force of law/was not entitled to
Chevron deference, but that once Customs decided to make it its official policy by
defending it in Court it was entitled to Chevron deference
o Is this view in conflict with Chenery Is ban on post-hoc agency
Where does Chevron apply?
o If its developed in formal adjudication, formal rulemaking, and then anything
that has the force of law (e.g. notice-and-comment rulemaking), can apply in
formal adjudication
o Chevron does not apply to:
o statutes that apply to a whole bunch of agencies but are not administered
singly by an agency (e.g. the APA, FOIA)
o criminal statutes
o policy statements
o interpretive rules