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Congress and the Administrative State
Spring 2014
Victoria Nourse
Professor of Law
vfn@law.georgetown.edu
My assistant: Johnny Wong, jcw103@law.georgetown.edu
Office hours: Tuesday 2-4 or by appointment
Almost every course in law schools teaches students about courts. This course teaches
about Congress, the President, and agencies, as well as courts. Using case studies, the course
introduces students to the government as a whole—Congress, the President, and the Supreme
Court—and how each institution fits into the constitutional scheme. Much of the course’s focus
is statutory interpretation, teaching interpretive skills applicable to all statutes, whether civil
rights or tax or securities law. This course also introduces students to the rules governing
Congress (e.g., the filibuster) and how and whether these rules should affect how legislation is
passed and how courts interpret statutes. Because much statutory interpretation occurs under the
President’s watch, the course also introduces students to rules governing administrative agencies,
and explains how courts apply special rules of statutory construction to agency regulations.
Almost all the classes will also include participatory exercises, in which students and the
instructor will be public actors resolving difficult issues of public lawmaking. Thus, we shall
imagine how lobbyists, legislators, administrators, and judges approach issues in their distinctive
ways—and how the constitutional structure of public lawmaking influences and constrains these
actors. The exercises are designed to teach practical skills as well as public law reasoning and
substantive knowledge.
The text for this course will be Statutes, Regulation, and Interpretation: Legislation and
Administration in the Republic of Statutes by Professors Abbe Gluck, William Eskridge Jr., and
myself.
The final examination in the course will be a take-home exam. Students will be given 8
hours to complete the exam, which is designed as a 3-4 hour in-class exam. Prior exams are on
file in the library. If you have technical questions concerning the materials, the website, please
address these to Johnny Wong, jcw103@law.georgetown.edu.
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Introduction to the Course
This introduction will explain how this course differs from a standard common law
course like torts or contracts. Courts do not create most law in our society: legislatures and
agencies do. The goal is to teach students about how statutes and regulations are made and how
this influences courts, agencies, and Congress in reading statutes and regulations.
Read: Problems 1-6 (pp. 1-32)
The problems focus on a simple statute. How do courts interpret the text of the statute?
How do legislators make the text? How do agencies implement the text? Students are assigned
to play roles as judges, legislators, agencies, and interest groups.
Part I
Congress, Agencies, and Courts
Part I of the course is an in depth, comparative, introduction to the internal workings of
Congress, the Executive, and Courts. As you read these materials, ask yourself: What does
Congress do and how does it do it? What are Congress’s institutional rules of operation?
What do agencies do and how do they do it? What are the basic rules governing agencies? In
comparison, what do courts do? This is essential background to move toward our goal of being
able to understand how statutes and regulations are made and how to argue cases involving
statutes and regulations in court.
Part IA. Congress
History of Civil Rights Act (Chapter 1, pp. 1-29)
Read
Story of the Civil Rights Act of 1964 (Chapter 1, sec. 1)
This class involves a reenactment of the creation of the Civil Rights Act of 1964, a statute
that changed law and society in vital ways; students play roles, including Senator Hubert
Humphrey, Senator Everett Dirksen, President Lyndon Baines Johnson, Attorney General Bobby
Kennedy, and the “women of the house” etc. Pay attention to how the statute is made, what
procedural hurdles its advocates face, and how easy it is to stop proposed legislation. If
someone told you to pass a civil rights remedy, would you know what steps to take?
Congress and Its Rules (Chapter 1, pp. 29-51)
Read
Notes on the Rules of the House and the Senate
Notes on Interest Groups and Political Parties
Problems 1-1, 1-2
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This class reviews the principles and rules governing congressional action (an important
prelude to Part III on Congress and statutory interpretation). To enhance students’ interest in
the topic, focus is on the problems.
Part IB. Agencies
Constitutional Limits on Agency Action (Chapter 2, sec. 2, pp. 33-59)
Read The Steel Seizure Case
Problem 2-3
This class intensifies students’ understanding of how agencies interpret statutes by
focusing on how the State Department interpreted “hostilities” in the War Powers Act and uses
this controversy to ensure that students are aware of important limits on all agency action
(domestic and foreign), which is to say that all agency action must be traced to a statute.
Forms of Agency Action (Chapter 2, sec. 3, pp. 60-93)
Read Introduction to Agency Implementation
Problem 2-6 FDA v. Brown & Williamson
Problem 2-7 Stem Cell Research
Scan: White House Cost-Benefit Review of Agency Rules (pp. 94-108)
This class introduces students to basic forms of agency action, including formal actions
(rulemaking and adjudication) as well as informal actions (guidance, letters) etc. The
Administrative Procedure Act is introduced, but considered in far greater detail in Part IV. The
FDA case shows the power of agencies as well as the limits placed on them by the requirement
that all agency action be consistent with a congressional statute. Reading statutes is shown as
very important to agency action.
Part IC. Courts
Judicial Power and Its Limits I (Chapter 3, pp. 1-12, 24-37)
This class teaches students the limits of the judicial power, which is to say that courts are
institutions hampered in many ways from the kinds of general prospective problem-solving done
by legislatures and agencies. Students are introduced to doctrines—such as standing, ripeness,
and political question—which limit courts’ power. Also emphasized is stare decisis—the power
of precedent to limit judicial decision. Typically, it is thought that judges have no constituency
but one way to think of stare decisis is that a judges’ constituency is precedent—the most
prominent source to which judges look for guidance in decision.
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Read Excerpts on Standing, Ripeness, Mootness, Political Question
Problem 3-1
Flood v. Kuhn
Judicial Power and Its Limits II (Chapter 3, pp. 38-57)
This class focuses on the interaction of the various players in the system. What happens
when courts make decisions that other institutions dislike? Agencies can push interpretations of
existing law, but Congress has the ultimate power to override a statutory interpretation decision
by passing a new law. That Congress has this power is an important constraint on the judiciary.
Read
Geduldig v. Aiello
General Electric v. Gilbert
Problem 3-2
Part II
COURTS & STATUTORY INTERPRETATION
This Part of the course returns to our opening problem: how courts interpret statutes. It
emphasizes the two basic doctrines used by courts today in interpreting statutes: textualism and
purposivism. Students should, by the end of this part, be able to read statutes, find the relevant
text, and make textualist and purposivist arguments for each and every statute considered, for
both parties in the case. Along the way, students will be exposed to the history of statutory
interpretation and judicial canons of statutory interpretation.
Introduction to Statutory Interpretation (Chapter 4, pp. 1-17)
Read Church of the Holy Trinity v. United States
Questions: Isolate the relevant parts of the statute. Is there “a” plain meaning” to the
text?
Purposivist Statutory Interpretation (Chapter 4, pp. 23-43)
Read Hart & Sacks, The Legal Process
Note on Criminal Sentence Enhancements
Marshall v. United States
Questions: Identify the relevant text in the lengthy drug statute (this is in and of itself an
important skill!) How does a textualist decide the relevant case? How does a purposivist
decide the relevant case? Can you identify more than one purpose to the statute?
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Statutory Interpretation and the Problem of Changing Norms
(Chapter 4, pp. 43-72)
Read
Note on New York Adoption Law
In re Jacob
Bob Jones Univ. v. United States
Questions: What is the key text? The purpose of the text? Should courts “update”
statutes to serve their purposes or because other law or social norms change?
Textualism I: Confirming text/Disregarding consequences
(Chapter 4, pp. 72-87)
Read
TVA v. Hill
United States v. Locke
Note on the Plain Meaning Rule in State Courts
Questions: Was there a plain meaning in TVA? Could you predict that Congress would
ultimately save the dam? If so, why? In both these cases, the text triumphs even though the
consequences may seem harsh to the public or to individuals. Ask yourself: plain meaning to
whom? Citizens, representatives, agency clients?
Textualism II: Rejecting legislative history
(Chapter 4, pp. 87-113)
Read Note on the Rise of the New Textualism (Chapter 4, § 3)
Green v. Bock Laundry Machine (Chapter 4, § 3)
Scalia, Matter of Interpretation (Chapter 4, § 3)
Chisom v. Roemer (Chapter 4, sec. 3)
Questions: Was there a plain meaning to the statutes in Bock Laundry or Chisom? If
not, was it wrong for the court to look to legislative context to resolve ambiguity? Should a
court assume that Congress has acted irrationally?
Canons of Statutory Construction I: Grammar Canons
(Chapter 5, pp. 1-26)
Read Note on the Textual Canons
Problem 5-2
Questions: To learn the latin and grammar canons, we will focus on Problem 5-2.
Which canons apply? Expressio unius? Noscitur a sociis? Ejusdem Generis? Students are
responsible for these “latin” canons as well as rules involving preambles, anti-derogation, and
the whole act rule.
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Canons of Statutory Construction II: Substantive Canons
(Chapter 5, pp. 27-47, 63-79)
Read: Substantive Canons
Muscarello
Gregory v. Ashcroft
Questions:
Be sure you know the difference between grammar/latin canons and
substantive canons. We will focus on three substantive canons: rule of lenity, constitutional
avoidance, and federalism.
PART III
CONGRESS AND STATUTORY INTERPRETATION
This part of the course asks how knowledge of Congress should affect statutory
interpretation. We return to the Introduction—where students were exposed to the rules and
principles of congressional procedure. We ask how this knowledge should, if at all, affect
judges’ interpretation of statutes. How and by what means should judges find Congress’s
meaning?
Legislative Context I (Chapter 6, pp. 1-29)
Read: OLP Memorandum
Pepper v. Hart
National Pride at Work v. Governor
Questions: This class raises one of the most important modern questions bedeviling
statutory interpretation: how to deploy (or not) evidence of Congress’s meaning. Pepper v.
Hart is a leading British case illustrating how “plain” meaning in one context (the judicial
context) may not be “plain” meaning in other contexts (the legislative context). National Pride
at Work demonstrates that rather controversial questions may hinge on the kind of evidence
deployed.
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Legislative Context II: Reverse Engineering (Chapter 6, sec. 2 & sec. 3)
Read: Holy Trinity Church (in chapter 4)
Public Citizen & Appendix 1 to Chapter 6
Green v. Bock Laundry (in chapter 4)
Questions: Is it possible to pick and choose text? Ask yourself what the proper text is in
Holy Trinity, Public Citizen and Green. Be sure to trace the statutory history in Public Citizen:
what text did the House pass? What text did the Senate pass? What text came out of the
conference committee? Do the same for Green. You can find these bills quoted in the text of the
Supreme Court cases.
Legislative Context III: Winners and Losers (Chapter 6, sec. 2)
Read: Weber
Babbitt v. Sweet Home
Questions: Focus on the types of legislative history deployed in Weber and Babbitt. In
some cases they rely upon committee reports. Are committee reports the best sources here? If
not, why not? What should be the best legislative history? Should courts be using “loser’s”
history (statements by those who opposed the bills)?
Note: you are not responsible for Problem 6-1, 6-2, or 6-3.
PART IV
AGENCIES AND STATUTORY INTERPRETATION
This part of the course addresses important questions arising in cases where regulations
are challenged in court. In the first section, students learn limits placed on administrative action
by the Administrative Procedure Act. In the second, they learn how and why courts defer to
agencies in cases involving statutory and regulatory interpretation.
Administrative Law I: Rulemaking (Chap. 7, pp. 1-21, 28-42)
Read
State Farm
Problem 7-1
Questions: Under the Administrative Procedure Act, what standard do agencies’ actions have
to meet? What review does the President exercise? Be sure to look at Problem 7-1 and the
cost-benefit analysis of prison rape. (You are not responsible for Nova Scotia Foods).
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Administrative Law II: Agency Action and Review (Chapter 7, pp. 55-75)
Read: In the Matter of …Golden Globes (Admin Ruling)
FCC v. Fox Television (Judicial Review)
Questions: Note the differences between formal and informal agency action. When does an
agency’s informal action satisfy the Administrative Procedure Act?
Judicial Deference to Agency Interpretations I (Chapter 8, pp. 1-17)
Read: Skidmore v. Swift
Chevron USA v NRDC
Questions: Be sure you know the difference between levels of deference and questions of
arbitrariness under the APA (discussed in previous classes). Be sure you know the standards
and reasons for deference announced in Skidmore and Chevron, are APPLIED!
Judicial Deference to Agency Interpretations II (Chapter 8, pp. 18-34)
Read: MCI v. AT & T
FDA v. Brown & Williamson
Questions: Chevron does not mean that one can avoid the basic question of statutory
interpretation, as MCI emphasizes. Return to FDA to remind yourself how statutory and
regulatory interpretation relate to each other.
Judicial Deference to Agency Interpretations III (Chapter 8, pp. 34-49)
Read: Mead
Questions: Mead is a notoriously difficult case. Focus on the question of delegation
and the nature of the agency action. How is Mead deference different from Skidmore and
Chevron.
REVIEW
There will be TWO review classes— one to review the material, the other to review
answers to a practice exam.