Table of Contents
• Intro… 1
• Statutory interpretation… 2
o Interpretive canons… 2
o Linguistic canons… 3
o Whole Code…. 6
o Substantive canons… 10
o Scrivener’s errors and absurdity… 10
o Constitutional avoidance… 11
• Intentionalism & purposivism… 13
• Textualism… 15
• Dynamic interpretation… 17
• Intro to Agencies… 19
• Types of agency action… 20
• Presidential control of agency… 22
• Congressional control of agency… 26
• Judicial review of agency action… 27
• Judicial control of statutory implementation… 30
• Informal adjudication… 34
• Guidance… 35
• Formal adjudication… 41
• Deference… 44
• Chevron step zero… 50
Legislation and Regulation – Donley 2019
Introduction to the Legislative Process
Common law limitations
• Retrospective v. prospective – CL rulings often punish previous acting, whereas regulatory law punishes
from ratification forward
• Reactive v. proactive – courts cannot address issues until they happen, legislatures can be proactive
• Uncertainty – transformation of prior precedent, often very narrow, jurisdiction issues
• Institutional competence – courts lack the specialized skill to regulated risk-generating conduct,
legislatures can bring in experts
• Political accountability – federal judges are unelected and can be unresponsive to public opinion
• Parties v. interested participants – court proceedings are limited to the parties involved; legislatures are
(in theory) open to everyone
• Collective action problem – lawsuits are expensive and not worth it most of the time
Rubin
Three significant differences between common law and statutory/regulatory law
• Identity of the lawmaker
• Substance of the law
• Process of decision-making
o Under common law: judges make law through cases using legal reasoning, precedent, and
analogy
o Under statutory law: legislatures make law through statutes using policy analysis and political
considerations
o Under regulatory law: agencies make law through regulations using policy analysis
Eskridge – Vetogates
Vetogates are points in the legislative process where a bill can die – Eskridge counts 9:
• House committee – 90% of bills die here
• House rules committee – bill from house committee can’t be considered unless the rules committee
expedites it
• Floor consideration – strategic amendments weaken or kill legislation
• Senate committee – committee chairs can delay or kill a bill
• Unanimous consent – Senate has no rules committee and organizes by consent agreements; 1 senator
can kill or delay a bill & determined minorities usually do
• Filibuster/hold
• Conference committee – two houses convene to agree on the same bill
• Conference bill consideration – post-conference
• President
Benefits of vetogates – by requiring bicameralism and presentment, the founders made it difficult to enact laws
• Stops bad laws
• Forces debate
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•
Saves us from ourselves – the legislative process will “suspend the blow mediated by the people
themselves, until reason, justice and trust can regain their authority over the public mind”
Costs of vetogates – default of the system is inaction
• Problems persist without solutions
• Public rage dwindles before anything gets done
Statutory Interpretation
Interpretive Cannons
Plain meaning rule – court should give effect to the plain or ordinary meaning of a law at the time of
enactment
•
Nix v. Hedden [ORDINARY MEANING]
o Facts: plaintiff imported tomatoes to New York. The state categorized them as vegetables to be
taxed, plaintiff sued alleging that tomatoes were fruit and not to be included
o Text: “vegetables in their natural state” are taxed, but “fruits, green, ripe, or dried” are free
o Issue: are tomatoes to be classed as fruit within the meaning of the tariff act of 1883?
o Holding: no. Tomatoes are vegetables under the tariff act.
o Reasoning: court abandons dictionary definition – conflicts with the plain meaning of the words
“vegetable” and “fruit”
• Vegetables are grown in kitchen gardens, usually served at dinner
• Fruits are served as dessert
Courts can reject dictionary definitions in favor of plain meaning when they think they are
wrong. Can be good or bad – dictionaries don’t always align with the most common meaning,
but borders on judicial overreach. If no evidence of special meaning in trade or commerce →
ordinary, plain-spoken meaning
• USE ON EXAM → REJECTING ORDINARY MEANING FOR COMMON USE
•
Zarda v. Altitude Express [ORDINARY MEANING]
o Facts: skydiving instructor brings suit under the Civil Rights Act of 1964 alleging he was fired
after disclosing to a customer that he was gay.
o Issue: does Title VII’s prohibition of “discrimination because of… sex” include sexual
orientation discrimination?
o Holding: 7th and 2nd circuits overruled themselves en banc, holding that sex discrimination
includes sexual orientation discrimination
• Katzmann
1. Sexual orientation is a function of sex – can’t fully define a person’s sexual
orientation without identifying his or her sex
2. Dictionary definitions
3. Rebuts strict textualist argument with assertion that text is read more broadly than
initially conceived
4. But-for test – would employee not have been fired had he been the opposite sex?
a. i.e. if Zarda was a woman attracted to men
• Lynch dissent
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•
•
•
•
1. Adding sexual orientation is not expanding – it is adding a new category/protected
class
2. Sex discrimination was added as a poison pill to get the bill thrown out
3. Amendment was aimed at discrimination against women – no one at the time
would think it would include sexual orientation discrimination
Posner
1. Dynamic interpretation – just admit you’re updating the statute
Sykes
1. Textualist – in 1964, sex meant biological sex
2. Need to protect from judicial overreach
Katzmann, Lynch, Sykes all agree on plain meaning
1. Lynch + Sykes think that the analysis ends at that definition – Congress should fix
it
2. Katzmann f(sex)
USE ON EXAM → BUT-FOR TEST
Linguistic Cannons
•
•
•
•
•
Ejusdem generis [EJ] → series ending with a general term means that the term encompasses the series
o Catchall + common characteristic
o “other plants” limited by “apple, orange, kiwi”
Noscitur a sociis [NS] → word is known by the company it keeps – interpret things with regard to the
context provided by the words around it
o “orange, green, and yellow” is talking about the color orange, not the fruit
Expressio unius [EX] → mention of one excludes another – only if terms in question have a common
characteristic
o Can’t harm “wasps, bees, or other insects that sting” – you can therefore harm a fly
Other cannons:
o Punctuation – commas, etc.
• Sir Roger Casement – “if a man be adherent to the king’s enemies in his realm, giving
to them aid or comfort in the realm, or elsewhere” it is treason. Casement gave aid
when he was overseas – without the commas, he would be innocent
• Oakhurst Dairy – commas
o Last antecedent – limiting clause only modifies the phrase immediately before it
o Conjunctive v. disjunctive – and/or
• De Sylva – statute that allowed executors to renew a copyright when the “author,
widow, widower, or children not be living.” Court decided the “or” was a scrivener’s
error and corrected it – otherwise, executor could act on behalf of someone still living if
their child or spouse died
• Reiter v. Sonotone – words connected by “or” are presumed to have different meanings.
Court: in the phrase “business or property,” “property” included money because it
would be redundant if it only meant business-related property
Keffeler [EJ]
o Facts: Washington state manages its own foster care system and reimburses itself with federal
funds to cover it – it uses a legal process involving the appointment of a payee and submission of
a claim to the state treasurer
o Text: Federal social security benefits for foster care are protected from “execution, levy,
attachment, garnishment, or other legal process”
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Legislation and Regulation – Donley 2019
o Issue: is Washington’s process prohibited as a “legal process” under the law?
o Holding: No.
o Reasoning: “other legal process” is limited by the terms preceding it and requires some judicial
or quasi-judicial mechanism to transfer control of property
• USE ON EXAM → EJ ARGUMENT
•
Ali v. Federal Bureau of Prisons [EJ – DOES NOT APPLY]
o Facts: plaintiff sues prison guard for losing his property
o Text: claims are barred against “any officer of customs or excise or any other law enforcement
officer”
1. Two-item list: “any officer of customs or excise” or “any other law enforcement
officer”
2. Three-item list: “customs officer,” “excise officer,” or “any other law
enforcement officer”
o Holding: two-item list
o Reasoning: no commas indicating that it is a three-item list, two enumerated items don’t share a
common characteristic
• USE ON EXAM → REJECTION OF EJ + 2 v. 3 ITEM LISTS
•
Dolan v. Postal Service [NS]
o Facts: plaintiff sues post office after he tripped on a package that was negligently left on his
porch
o Text: claims arising from “loss, miscarriage, or negligent transmission of letters or postal matter”
are barred
o Court: text limits to negligence that causes mail to be lost or arrive late, in damaged condition, or
at the wrong address
1. Deals with delivery of mail
2. Doesn’t cover alleged negligence – plaintiff can continue with the lawsuit
o USE ON EXAM → NS ARGUMENT
•
United States v. Williams [NS, ABSURDITY]
o Text: anyone who knowingly “advertises, promotes, presents, distributes, or solicits” child
pornography, is subject to criminal penalties
1. Court is asked to interpret “promotes” and “presents”
o Court: common characteristic in this list is speech that induces or seeks to induce the transfer of
child pornography from one person to another
1. Promotes: act of recommending child porn for acquisition
2. Presents: showing or offering child porn for acquisition
• USE ON EXAM → NS ARGUMENT + ABSURDITY ARGUMENT
•
Warren v. Maine [NS – DOES NOT APPLY]
o Issue: is a dam’s release of water “discharge” under the CWA?
o Text: “discharge” when used without qualification includes discharge of a pollutant, and a
discharge of pollutants
o Court: “discharge of a pollutant” and “discharge of pollutants” are the same thing – there is no
gathering with a common feature from which to extrapolate a meaning of “discharge”
• USE ON EXAM → REJECTION OF NS
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•
Barnhart v. Thomas [LAST ANTECEDENT RULE]
o Facts: plaintiff sought disability benefits – she was able to do her previous job as an elevator
operator, but the job no longer existed in society
o Text: can only get disability benefits if impairments “are of such severity that she is not only
unable to do her previous work, but cannot… engage in any other kind of substantial gainful
work which exists in the national economy”
1. “which exists in the national economy” refers to both conditions – must prove that
she is unable to do (1) her previous work, which exists in the economy and (2)
any other kind of work which exists in the economy
a. Would win here
2. “which exists in the national economy” refers only to the phrase preceding it –
unable to do (1) previous work and (2) any other kind of substantial gainful work
which exists in the economy
a. Would lose here – she can still do her previous work, it just no longer
exists
o Court: chooses second option – classic application of last antecedent rule
• USE ON EXAM → LAST ANTECEDENT ARGUMENT
•
U.S. v. Hayes [LAST ANTECEDENT RULE – DOES NOT APPLY]
o Text: “misdemeanor crime of domestic violence” means “an offense that (ii) has, as an element,
the use or attempted use of physical force, or the threatened use of a deadly weapon, committed
by a current or former spouse, parent, or guardian of the victim…”
1. Offense must (1) have as an element the use or attempted use of force and (2)
have been committed by someone with a special relationship
a. This would include convictions for assault, attempted murder, etc., which
happened to have been committed against a spouse or family member
2. Offense must have as an element (1) the use or attempted use of force and (2) that
it be committed by someone in a special relationship
a. This only includes convictions for domestic violence – only DV has as an
element that the harm be committed against a family member
b. Last antecedent rule supports this – “committed by” modifies the phrase
immediately preceding it, “element,” not “offense.”
o Court: rejects last antecedent rule – context outweighs the rule
1. Element is singular – doesn’t make sense if read as two elements (option 1)
2. “Committed a use by force” doesn’t make sense
• USE ON EXAM → REJECT LAST ANTECEDENT
•
U.S. v. X-Citement Video [ABSURDITY, UNCONSTITUTIONAL]
o Text: “(a) any person who (I) knowingly transports or ships… any visual depiction, if (A) the…
depiction involves use of a minor engaged in sexually explicit conduct”
1. Knowingly only modifies “transports or ships”
2. Knowingly modifies both “transports or ships” AND the text after A
o Court: option two – even though natural grammatical reading suggests option one, that reading
would be absurd and possibly unconstitutional
• USE ON EXAM → ABSURDITY ARGUMENT, CONSTITUTIONAL
AVOIDANCE ARGUMENT
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Legislation and Regulation – Donley 2019
•
Begay [EJ, REDUNDANCY]
o Facts: defendant had 12+ DUI convictions when he was arrested for firearm possession. Federal
statute imposes a 15 year minimum sentence when an offender who has three prior convictions
for a “violent felony” possesses a firearm – in New Mexico, a DUI becomes a felony after 3
prior DUIs
o Text: “violent felony” is “any crime punishable by imprisonment for a term exceeding one year”
that
1. Has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
2. Is burglary, arson, or extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious risk of physical injury to another
o Issue: is a DUI included under the underlined portion of (2)?
o Court: No.
• EJ – common characteristic is intentional, purposeful, and aggressive conduct – a DUI
doesn’t necessarily fit
a. Scalia – common characteristic is degree of risk
• Redundancy – if all crimes that present a serious risk are included in the catch-all, then
the rest of the phrasing is redundant
• Purpose – the Act was aimed at violent criminals
a. Found in legislative history – prior act only said “robbery or burglary” and
on expansion, Congress rejected a sweeping term and changed it to
“similar crimes”
o Alito’s dissent: does not use EJ at all, concludes that a DUI “poses a serious potential risk”
1. Statute needs legislative clarification
• USE ON EXAM → EJ ARGUMENT, REDUNDANCY ARGUMENT
Whole Act Rules
Whole Act Rule – interpret statutes as if they are part of a cohesive whole
• King v. Burwell – interpreted the ACA holistically
Identical words used throughout a statute are presumed to have the same meaning throughout – consistent
words, consistent meanings.
•
Comm. Of Internal Revenue v. Lundy
o Does a “claim” mean a “claim filed on a return?”
• No – “claim” must mean the same thing throughout the Act
1. Statute would be senseless if the meaning of “claim” was so narrow
USE ON EXAM → WHOLE ACT ARGUMENT
•
General Dynamics Land Systems v. Cline – age discrimination
o Meaning of “age” – number of years v. lifespan
o Social history associates age discrimination with old people – in this context, “age” means “old”
1. “age” can have several different meanings, but “age discrimination” does not –
context can trump canon
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Legislation and Regulation – Donley 2019
USE ON EXAM → SINGLE WORD v. PHRASES – REJECTION OF WHOLE
ACT, CONTEXT ARGUMENT
Surplusage and Redundancy
• Courts should read statutes so that no provision, clause, phrase, or word is superfluous
• Conflicts with NS – “blue, teal, and navy”
o NS indicates that teal refers to a bluer green-blue
o Surplusage indicates that if teal is blue, it is redundant
•
Circuit City v. Adams [EJ AND REDUNDANCY]
o Does the federal arbitration act exclude all employment contracts?
o Text: act exempts “contracts of employment of seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce”
1. 9th circuit – “any other class of workers” applied to all employment contracts
o Supreme Court: “any other class of workers” is limited by EJ – otherwise “seamen and railroad
employees” would be redundant
1. EJ and redundancy work together
USE ON EXAM → EJ ARGUMENT, REDUNDANCY ARGUMENT – ALWAYS
REMEMBER YOU CAN TRY TO COUPLE EJ AND REDUNDANCY!!
Titles + Provisos
• Courts use titles to confirm their interpretation, but not to contradict text’s meaning
o Holy Trinity uses title to contradict text
USE ON EXAM → REJECTING TITLE TO CONTRADICT TEXT
o Villanueva-Sotelo – Court relied on title (“aggravated identity theft”) to hold that the crime
required a finding of intent to deprive a rightful owner of property and didn’t include
unintentional identity theft
USE ON EXAM → CONFIRM ARGUMENT WITH TITLE
Whole Code Rules
In pari materia – separate statutes addressing the same subject matter should be read as if they were one law
• Congress is aware of other statutes and tries to create a cohesive statutory code
• Has its greatest weight when the same Congress passed both laws in question
Inferences across statutes – courts can use these when they don’t accept in pari materia
• Consistent words/consistent meanings
• EX – inclusion of language in one statute leads to an inference that if it is excluded elsewhere, it was
intentional
o Casey
• Surplusage – courts can reject an interpretation of one statute that would cause redundancy in another
• Repeals by implication
o Courts assume that later statutes do not repeal earlier ones unless they explicitly say so, directly
contradict the other one, or is otherwise nonsensical without a repeal
1. Stewart
o Courts are especially likely to follow this when the later statute is general and the earlier statute
is specific
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1. Erlenbaugh
•
United States v. Stewart [IN PARI MATERIA]
o Issue: are capital gains on farm bonds exempt as “income derived therefrom” under Section 26
of the Farm Loan Act (1916), or are they taxable as “income” under the Revenue Act (1928)?
• Text:
1. Farm loan act – “farm loan bonds… and the income derived therefrom shall be
exempt from taxation”
2. Revenue act – gross income includes “gains, profits, and income derived from…
sales, or dealings in property…” except “interest upon securities” from the farm
loan act
o Court: reads the two in pari materia
1. the Revenue act refers to the Farm loan act
2. they cover the same subject matter
3. precursor to the Revenue act was enacted in the same Congress as the Farm loan
act and used the same terms
More recent Revenue act interprets and limits the Farm loan act – the Revenue act
governs and capital gains must be taxed
USE ON EXAM → IN PARI MATERIA ARGUMENT (SAME SUBJECT
MATTER AND SAME CONGRESS)
•
Erlenbaugh [IN PARI MATERIA DOES NOT APPLY]
o Facts: defendants circulated a gaming publication across state lines, which was illegal.
Prosecuted under 1952(a), tried to argue that the “newspaper” exception from 1953(b) applied
• Text at issue
1. 1952(a) prohibits the use of “interstate… commerce… with the intent to…
promote… any unlawful activity” without exception
2. 1953(a) prohibits sending in “interstate… commerce… any… paper… to be used
in (a) bookmaking or (b) wagering pools…” unless under 1953*b), it is a
“newspaper or similar publication”
o Court: rejects in pari materia, says statutes are too dissimilar – one is aimed at gambling and the
other is aimed at generally unlawful activity
USE ON EXAM → REJECT IN PARI MATERIA (DIFFERENT SUBJECT
MATTER)
•
Casey [EX, IN PARI MATERIA DOES NOT APPLY]
o Issue: does a “reasonable attorney’s fee” include expert witness fees?
o Court: No.
• In other statutes, Congress included expert witness fees as separate from attorney’s fees
• If the fees are the same, the other statutes are redundant
USE ON EXAM → REJECT IN PARI MATERIA, REDUNDANCY ARGUMENT
•
National Association of Home Builders [EX, REPEAL BY IMPLICATION]
o Clean Water Act mandates that the EPA “shall” issue a pollution permit when an applicant meets
9 different criteria
o Issue: does the Endangered Species Act (enacted later) add a 10th criteria?
1. Pollution would not threaten an endangered species
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Legislation and Regulation – Donley 2019
o Court: No.
1. EX → the CWA created 9 criteria; adding a 10th is like repealing the section of
the law that said there were 9
USE ON EXAM → REJECT REPEAL BY IMPLICATION
•
O’Connor v. Oakhurst Dairy [REMEDIAL PURPOSE – OTHER CANONS ARGUED BUT NOT
SUCCESSFUL] (and also commas)
o Facts: plaintiffs are drivers who deliver perishable foods – they want overtime pay under 26
M.R.S.A SS 664(3), which requires employers to pay time and a half to employees working over
40 hours
o Text: overtime protection does not apply to “the canning, processing, preserving, freezing,
drying, marketing, storing, packing for shipment or distribution of… perishable foods”
1. Dairy’s preferred reading: drivers are included because they are distributors of
perishable foods
a. “packing for shipment” and “distribution” are separate terms
b. Surplusage – if “packing for shipment and distribution” is one item, it is
redundant – shipment and distribution are the same
c. Disjunctive “or”
2. Drivers’ preferred reading: drivers are not included because they do not pack for
distribution perishable foods
a. “packing for shipment or distribution” is one term
b. Punctuation – no oxford comma
i. Drafting manual supports excluding oxford commas
c. Parallel use convention – if “distribution” is intended as a separate
activity, then why isn’t it listed as a gerund like the other words in the list?
Shares same grammatical role as shipment
o Issue: are drivers included in this exception?
o Court: we don’t know. It’s a tie, so they invoked the remedial purpose canon to side with the
drivers
USE ON EXAM → REMEDIAL PURPOSE, COMMAS
•
Smith v. Jackson [IN PARI MATERIA]
o Facts: Jackson, MI adopted a plan to give raises to the police force. Those with less tenure
received proportionately greater raises, older officers filed suit under the ADEA
o Issue: does 4(a)(2) of the ADEA permit disparate impact claims?
1. Disparate treatment – intentional discrimination
2. Disparate impact – discriminatory conduct, whether intentional or not
o Court: the ADEA permits disparate impact claims
1. Reads ADEA in pari materia with Title VII – the ADEA copied Title VII’s
language
a. Court had previously interpreted Title VII to include disparate impact
claims
2. If only disparate treatment claims were permitted, the RFOA provision would be
redundant because only intentional discrimination is prohibited
o O’Connor Concurrence – plain meaning “because of… age” suggests that discriminatory intent
is required
1. Title VII does not have an RFOA provision – indicates different scope – Title VII
prohibits discrimination based on characteristics that do not impact performance.
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Legislation and Regulation – Donley 2019
Age might actually impact performance, which is why the RFOA provision was
created
USE ON EXAM → IN PARI MATERIA ARGUMENT – SAME LANGUAGE IN
RELATED STATUTE
Substantive Cannons
•
These have nothing to do with the language, but reflect how the law should be read. These are only
invoked when the text is ambiguous
Lenity – courts should construe ambiguous, criminal statutes in favor of the defendant. The challenge is
determining when the ambiguity is significant enough to invoke the rule
• Scalia’s concurrence in Begay
•
Muscarello [PLAIN MEANING, PURPOSE, LENITY DOES NOT APPLY]
o Facts: 3 defendants were convicted of carrying a firearm to a drug deal – Muscarello took a
handgun, but it was locked in his glove compartment. The other two took guns in their car trunk
o Text: a defendant is subject to a 5-year mandatory minimum for “using or carrying a firearm”
“during and in relation to” a “drug trafficking crime”
o Issue: did the defendants “carry” a firearm to their drug trafficking crimes?
o Court: there are two interpretations – hold on one’s person or transport from A to B.
• Court goes with transport from A to B, including in a vehicle.
a. Starts with plain meaning – uses dictionary, Oxford’s first definition:
“covey, originally by cart or wagon, hence in any vehicle…”
i. Etymology – “carum” means cart
ii. Literature
iii. Newspapers
b. Purpose – the law was enacted to combat the dangerous combination of
drugs and guns, and to encourage dealers to leave their guns at home
c. Rejection of Lenity – text isn’t ambiguous enough, must be close to a tie
before it can be invoked
o Ginsburg’s dissent – cites conflicting dictionaries to highlight ambiguity, looks to other statutes
that use “transport” instead of “carry” (EX AND WHOLE CODE), concludes that lenity should
be invoked
• It is the government’s burden to prove the law is clear – does not require a tie
USE ON EXAM → (1) ARGUMENT FOR PLAIN MEANING, (2)
PURPOSE (COMBAT COMBINATION OF DRUGS AND GUNS), (3)
LENITY DOES NOT APPLY (TEXT NOT AMBIGUOUS ENOUGH)
Scrivener’s Errors and Absurdity
•
X-Citement Video – Court distributed the word “knowingly” beyond its traditional reach to avoid a
situation where a FedEx driver would be criminalized for unknowingly carrying child porn
o De Sylva – changed “or” to “and”
•
Locke
o Facts: claimants were gravel miners that purchased 10 mining claims on public lands in Nevada;
the law requires paperwork to be filed every year “prior to December 31.” Claimants filed on
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Legislation and Regulation – Donley 2019
December 31 because an agency employee told them they could – it was actually a day late and
their claims were deemed abandoned and owned by the government
o Text: “prior to December 31”
1. “Prior to December 31” – prior to that date
2. “Prior to December 31” – by 12/31 or prior to the end of the year
o Court: shut up the law means what it says
1. No scrivener’s error – the language of the statute is not ambiguous
2. Deadlines are arbitrary – the purpose of a filing deadline would be just as well
served by nearly any date
a. Court acknowledges that this is a bad date, but they don’t have the
authority to do anything about it
USE ON EXAM → REJECT SCRIVENER’S ERROR
Constitutional Avoidance
Strict – if there are two possible interpretations, one of which is clearly unconstitutional, the court must adopt
the one that is constitutional
o Presume that Congress did not intend to enact an unconstitutional law
Less strict – courts should interpret statutes to avoid constitutional questions → i.e. from even having to
consider a genuine argument avoid constitutionality
o Legislatures may try to push constitutional bounds (abortion)
•
Marshall [REJECTS CONSTITUTIONAL AVOIDANCE, EX]
o Facts:
• Marshall distributed 10 grams of LSD (~12,000 doses) and was subject to a 10 year
mandatory minimum prison sentence
• Other defendants distributed 10 sheets of LSD (~1,000 doses, 5.7 grams) and were
subject to a 5 year mandatory minimum prison sentence
o Text: “1/10 grams of a “mixture or substance containing a detectable amount” of LSD = 5/10
year minimum
o Issue: if the weight of the carrier were excluded, would the defendants be subject to the
mandatory minimum?
• No – Marshall’s ~12,000 doses had a pure weight of less than 1 gram, not even enough
to trigger the 5 year minimum
o Issue: is the weight of a paper or gelatin carrier of LSD included as a “mixture or substance
containing a detectable amount” of LSD?
• Problems: low level street dealers punished more harshly than something like a pharm
company that could make purer product. LSD is criminalized higher than other drugs,
like heroin – someone who sold 20,000 doses of pure LSD does not hit a 5 year
minimum, but someone selling one dose in a glass of OJ would
o Court: the weight of the paper or gelatin in LSD carriers are included
• Plain meaning – “mixture… containing a detectible amount” is the opposite of pure. It
is intended to cover at least some carriers
• Whole act – there is a 10 year minimum for either pure or mixed PCP. If Congress
wanted to base LSD penalties on the pure drug, it would have
1. EX
• Gelatin and paper differ from a plane carrying crack or a box of cocaine
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•
Rejects constitutional avoidance – language is too clear, and courts cannot rewrite
statutes [less strict]
• Posner dissent – highlights the undesirable consequences
1. People buy LSD in doses, not weight – OJ example
2. Positivist – judges must effectuate clear meaning regardless of whether they like
the outcome
3. Pragmatist – interpretation authorizes judges to enrich the law with moral values
and practical concerns
a. Posner is this one
b. Gets around plain meaning by interpreting paper and gelatin carriers as
being the same as a package of cocaine or an airplane carrying heroin
• Constitutional avoidance – 8th cruel/unusual (proportionality in punishment), 5th EPC
USE ON EXAM → (1) PLAIN MEANING OF MIXTURE, (2) WHOLE ACT (10-yr
MINIMUM FOR PCP), (3) REJECT CONSTITUIONAL AVOIDANCE (LANGUAGE IS
TOO CLEAR, COURTS CANNOT REWRITE STATUES)
•
Babbitt
o Facts: plaintiffs are small landowners, loggers, and families who depend on forest products.
Their businesses threaten the habitat of endangered birds and they seek declaratory judgment that
significant habitat modification or degradation is not prohibited under the ESA
• Section 9: prohibits the “taking of any such endangered species”
1. “take” is defined in the act as to “harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to engage in such conduct”
2. Agency interpretation of “harm” – act which actually kills or injures wildlife, may
include significant habitat modification or degradation where it actually kills or
injures wildlife by impairing essential behavioral patterns
a. Only applies when govt. can prove species have been killed or injured
• Section 5: allocates funds for the Secretary to buy private land where the habitat of an
endangered species could be threatened
• Section 7: requires govt to ensure that its activities do not result in the “destruction or
adverse modification of critical habitat”
•
Section 10: allows the Secretary to grant a permit for an otherwise prohibited taking “if
such a taking is incidental to, and not the purpose of, the carrying out of an otherwise
unlawful activity”
o Majority (Stevens)
• Plain meaning – dictionary says “to cause hurt or damage,” no indication that it must be
direct
• Surplusage – unless “harm” means indirect as well as direct injuries, it would not have
an independent meaning from the other words and would be redundant
• Purpose – to half and reverse the trend towards species extinction, whatever the cost
• Legislative history – committee reports said that “take” was supposed to be broad, but
Senate bill originally included “habitat modification” in the definition of “take” and
was taken out
• Whole act – section 10 permits indicate that Congress intended to allow “incidental”
takings and understood that it was prohibiting “indirect as well as deliberate takings”
1. Congress created a mechanism for industry – if harm only means direct,
deliberate acts, then this section would be absurd
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a. Dissent: there are incidental harms that are not habitat modification –
catching sea turtles by accident while fishing
o Dissent (Scalia)
• Plain meaning – had “take” not been defined in the act, it would mean to exercise
dominion over an animal by killing or capturing it. “Take” describes a class of acts
done directly and intentionally
1. Admits that the act expands the meaning of take, but says that it is only expanded
to include acts that occur in the process of a traditional taking or attempts at a
traditional taking
Scalia says “harm” must mean a direct, willful act that causes injury. Says it is
just as likely that Congress intended this definition
• NS – all the surrounding words suggest immediate and intentional acts against a
particular animal, not omissions or accidents
• Whole act
1. Section 7 [no harming critical habitat]
a. EX: Congress’s explicit prohibition of habitat modification in one section
would bar the inference of an implicit prohibition of habitat modification
b. Redundancy: if section 9 already prohibited habitat modification, then
section 7 would be redundant
2. Section 5 [govt can buy land to prevent harm of habitat]
a. Congress already designed a remedy – if the conduct was already
prohibited, why would the government want to buy land to prevent it?
i. Majority – this is prospective and cheaper than suing
3. Rebutting purpose – points to floor testimony that section 5 was the primary
mechanism to combat habitat modification and differed from section 9
USE ON EXAM → I don’t know
Interpretive Philosophies and Use of Legislative History
Intentionalism and Purposivism
Intentionalism – interpret statutes based on the legislature’s intent
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Purposivism – looks to remedy the problem the legislature was aiming to prevent and interprets the statute with
that aim in mind
Justifications for intent-based theories
• Judicial constraint
• Legislative supremacy/separation of powers
• Democracy
• Avoiding bad outcomes
Evidence of intent/purpose
• Political and historical context in which the bill was passed (Holy Trinity)
• Judicial decisions if they entered the legislative mindset (Jackson)
• Subsequent legislative history – courts may consider attempts to change the law or pass new laws
(Zarda)
•
Holy Trinity
o Facts: a church entered into an employment contract with an English pastor to come to the U.S. –
govt. argued this was illegal under an 1885 law that prohibited companies from bringing foreign
labor into the U.S.
o Text: “it shall be unlawful for any… corporation to in any way assist or encourage the migration
of any foreigner into the United States… under contract or agreement… to perform labor or
service of any kind”
o Issue: do pastor services fall within the meaning of “labor or service of any kind” in the statute?
o Holding: No.
o Reasoning
• Plain meaning – pastors fall under the act, the text in isolation would prohibit the
church’s conduct
• Context – “any” implies breadth, “service” is a broad term
• EX – enumerated list and pastor is not in it
• Intent – sometimes the law does not mean what it says. Brewer defends this with the
“spilling blood in the streets” incriminating a surgeon analogy
• Title – court says the title only covers “manual labor,” not people who are brain toilers
• Purpose – “the evil which it is designed to remedy”
1. This is where they get racist ☺
• Legislative history – committee reports showed they considered replacing “labor and
service” with “manual labor” but left the language as is because they thought it was
clear
• Absurdity – justify it with God
USE ON EXAM → MEANING CONTRADICTS TITLE, “ANY” IMPLIES
BREADTH
•
United Steelworkers
o Facts: employer’s affirmative action plan reserved at least 50% of the new positions in its
program for black applicants until the percentage of black workers equaled the proportion of
black workers in the labor market. White person was denied entrance into the program despite
having more seniority, sued under Title VII
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o Issue: does Title VII make it illegal for employers to create affirmative action plans?
o Majority (purposivist) – affirmative action plans to do constitute race discrimination under Title
VII
• Plain meaning – affirmative action would be race discrimination
1. White people too  (McDonald)
2. Court cites Holy Trinity to get around this – petitioner’s reliance on literal
interpretation is misplaced
• Purpose – Title VII was enacted to help the black community get jobs after decades of
discrimination, literal construction would violate the purpose of the act
o Dissent (intentionalist) – Rhenquist
• Corrects majority on McDonald – the court in that case held that Title VII prohibits
race discrimination against any race
• Legislative intent
1. Text: Congress fully understood what it was saying and meant what it said
2. Legislative history: affirmative action was debated in the house – opponents
argued that Title VII would lead to affirmative action, and supporters argued that
its text prohibited affirmative action
3. To satisfy those on the fence, the house added 703(j), which prohibits agencies
and courts from requiring employers to institute affirmative action. 703(j) permits
affirmative action on Indian reservations, but nowhere else [EX,
REDUNDANCY]
o Dissent (textualist) – Burger
• Majority’s judgment is contrary to the explicit language of the statute and arrived at by
means wholly incompatible with long-established principles of separation of powers
USE ON EXAM → PURPOSE OF LEGISLATION (TITLE VII ENACTED TO HELP
BLACK COMMUNITY – REJECTION OF PLAIN MEANING BECAUSE IT
UNDERMINES THE PURPOSE OF THE ACT)
Textualism
•
Textualism directs courts to discern the ordinary meaning of the text in context. It directs courts to stop
with the text of the statute – textualists do not use legislative intent. Textualists believe that only the text
is law, nothing else.
o “ordinary meaning” is the reasonable person standard
o “in context” is viewing the text as a whole body of law, rather than in isolation
•
Constitutionality
o Only the text of the statute in question is enacted by the constitutionally governed process of
lawmaking – using extrinsic sources like legislative intent is unconstitutional
•
Constrainment
o Textualism is more constraining on judges
o Some textualists argue that if textualism were uniformly applied, the legislative process would be
more disciplined – Congress would know that courts would only consider the actual text and
would be more decisive in writing statutes
•
Internal Consistency
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Legislation and Regulation – Donley 2019
•
•
Textualism is not totally confined to the text itself – many textualists use dictionaries
and industry customs to interpret statutes
Some experts argue that scrivener’s errors and the absurdity doctrine conflict with
textualism – this can lead courts astray more than help them
•
Impermissibility of legislative intent
o Two questions about the judicial reliance on legislative history come up:
• What is the proper weight to give different pieces of legislative history?
• Which pieces of legislative history are reliable indicators of legislative intent?
Textualists don’t consider either of these – the only question they ask is whether it is permissible
at all for courts to consult legislative history.
•
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law
o Constitutionality
• The text of the statute is the only law – using legislative intent to codify law overrides
the constitutional process set forth
o Reliability
• With respect to 99.99% issues of construction presented to courts, there is no legislative
intent
• The contention that both houses of Congress and the President entertained any ideas
relating to the detail that the courts look at statues is “utterly beyond belief”
• The floor of the house is rarely crowded – it’s not like the legislators are sitting there
debating one another. Legislators often do not read reports in detail
1. “General knowledge is a precondition for the supposed authoritativeness of a
committee report”
• Facilitation of willful judging
1. Judges can choose whether or not to consider legislative history – if a judge
doesn’t like a committee report, he or she can just not use it, or only use parts that
support their argument
• Cost to lawyers and judges
1. Scalia says that 60% of the time the lawyers on his staff spent was dedicated to
poring over legislative history – “what a waste.”
• Incentives for legislators
1. It is well known that judges resort to record of floor debates and committee
reports as authoritative expressions of legislative intent – can frame these things
however they want the court to construe the statute
•
Brogan
o Facts: union officer accepted cash payments from the corporation whose employees were
represented by the union. Govt. showed up to his house, knowing that he had accepted the
payments – when they asked, he said no. After he denied it, the officers said they had evidence
contrary to his statements and that he had just committed another crime by lying to federal
officers
o Text: it is illegal to “knowingly and willfully… make any false statement” to any U.S.
department or agency
o Issue: does the “exculpatory no” fall within this text?
o Holding: Yes. An exculpatory no is a knowing, false statement under the Act
o Majority (Scalia) – “any” implies breadth, “no” is a statement
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Legislation and Regulation – Donley 2019
1. Purpose can never trump the text
o Concurrence (Ginsburg) – text is clear and should not be disturbed, but says Congress needs to
fix this in fear of prosecutorial abuse
• Generation of felonies
USE ON EXAM → TEXTUALIST ARGUMENT – “NO” IS A STATEMENT UNDER
THE ACT
•
TVA v. Hill [SOFT TEXTUALISM]
o Facts: congress appropriated $100 million for the development of a dam, scientists find the snail
darter, plaintiffs sued to halt the dam’s opening to protect the snail darter
o Text: ESA requires federal agencies to “ensure that actions authorized, funded, or carried out by
them do not jeopardize the continued existence” of an endangered species or “result in the
destruction of its habitat”
o Issue: does the ESA prevent the opening of the nearly completed dam?
o Majority: Yes
• Plain meaning – the dam would “jeopardize the continued existence” of an endangered
species and destroy its habitat
• Legislative history – halt and reverse the trend toward species extinction, whatever the
cost
• Subsequent legislation – appropriations for the dam after the ESA could point to
Congress not wanting to block completion of the dam
o Dissent – relies on absurdity, says this is insane and lacks common sense
USE ON EXAM → plain meaning, legislative history, subsequent legislation (weak)
Dynamic Interpretation
•
Allows the meaning of statues to evolve with time – laws exist in the present, even if passed in the past
o Normative legitimacy – citizens won’t respect the law if it is seen as anachronistic
o Due process/notice – laypeople interpret the law in today’s terms
o Avoiding bad outcomes – without dynamic interpretation, the law is harsh, inflexible, and
inefficient
o Political realities – vetogates make it hard to update statutes
•
Bob Jones University v. United States, 461 U.S. 574 (1983) [TRADITIONAL TEXTUALISM]
o Facts: system of nonprofit private schools that prescribe and enforce racially discriminatory
admissions standards on the basis of religion lost their tax-exempt charity status under the
director of the IRS
• In January 1970, a 3-judge district court issued an injunction prohibiting the IRS from
granting tax-exempt status to private schools practicing racial discrimination.
• In July 1970, the IRS said it could “no longer legally justify allowing tax-exempt status
to private schools which practice racial discrimination” and that it “could not treat gifts
to such schools as charitable deductions for income tax purposes”
• In June 1971, a 3-judge district court issued Green v. Connally, standing by the IRS
Commissioner
1. “based on the national policy to discourage racial discrimination in education, a
private school not having a racially non-discriminatory policy as to students is not
charitable within the common law concepts reflected in…”
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Legislation and Regulation – Donley 2019
o Holding: affirmed
• Plain meaning – plaintiffs try to make this argument, but court rejects and does
legislative intent instead
• And/or – disjunctive shows that “charitable” is different from “educational”
• “Section 501(c)(3) must be analyzed and construed within the framework of the IRC
and against the background of Congress”
1. Charities are a benefit to society – being racist doesn’t benefit society ☺
2. Court holds that racial discrimination in education violates a fundamental national
public policy, as well as the rights of the individual
o Petitioners tried the “you don’t have the authority to do that, only Congress does” argument
• Court: longstanding tradition of giving IRS authority to interpret its code, not
necessarily only Congress’s job
• Congress’s behavior since 1970 is indicative of being consistent with the IRS and with
not being racist
o Rehnquist’s Dissent
• Agrees with everything but says it isn’t within the Court’s authority to make this
decision and that legislative history isn’t reliable
USE ON EXAM → DISJUNCTIVE AND/OR, PUBLIC POLICY ARGUMENT
•
In re Erickson
o Facts: farmer went bankrupt, statute excludes some assets from civil judgment – farmer argues
that his baler and haybine should be excluded under the act
o Text: exempts “one tractor not to exceed in value the sum of $1,500… one mower… one hay
loader”
o Issue: is a haybine a mower?
o Reasoning – Easterbrook
• Purpose of exceptions – the statutory list comprises the equipment that in 1935 would
have kept a small farm in operation
• Competing purposes
1. Ensure that lenders can collect their collateral and in turn can give more
reasonably priced loans
2. To give farmers a fresh start
Court calls it a near tie, but concludes that a haybine is a mower under the statute
– it is part of the minimal equipment to work a field, close cousin of mower.
Didn’t set any precedent, narrow holding
3. Functions test – rejected, absurdity
4. Equal value test – rejected, new technology is more valuable, even if adjusted for
inflation
5. Technological successor – rejected, too far, a Boeing 747 isn’t a successor of the
Roman chariot
USE ON EXAM → PURPOSE ARGUMENT, “CLOSE COUSIN”
•
New Prime
o Facts: trucker’s contract labels him an independent contractor and requires disputes to go
through arbitration – Federal Arbitration Act requires courts to enforce arbitration agreements
unless they meet the exception
o Text: excludes “contracts of employment of… workers engaged in… interstate commerce”
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o Issue: does “contracts of employment” refer only to contract between employers and employees,
or does it also reach independent contractors?
o Holding: it includes contracts for independent contractors
o Reasoning
• Statutes are interpreted according to plain meaning at the time of enactment
• In 1925, “contracts of employment” meant any contract for work
1. Dictionaries from this time treated employment as synonymous to work
2. Same meaning was used in early 20th century case law and statutes
3. “class of workers” is broader than employees
USE ON EXAM → PLAIN MEANING AT TIME OF ENACTMENT (DICTIONARIES,
CASE LAW, STATUTES)
•
Middle Ground Approaches
o Practical reasoning – judges aren’t tied to one canon or theory
o In re Sinclair
• Facts: farmers file for chapter 11 bankruptcy. A year later, Congress adds chapter 12,
which provides benefits for bankrupt farmers – farmers want to change their claim from
chapter 11 to chapter 12.
• Text: chapter 12 “shall not apply with respect to cases commenced under title 11…
before the effective date of this act”
• Court: no conversion allowed, plain meaning
1. Legislative history – conflicts with the text. Committee report said that there
would be an exception to conversions when equity requires it and there is a
substantial likelihood of successful reorganization under chapter 12
a. Statute says no conversion, legislative history says it’s possible – text
trumps legislative history
USE ON EXAM → PLAIN MEANING/TEXT > LEGISLATIVE HISTORY
MIDTERM EXAM MATERIAL END
Introduction to the Modern Administrative State [CB 1-15, 48-53]
1. Agency – unit of government created by statute. It owes its existence, form, and power to legislation.
Statutes create and specify the powers of agencies
a. Power – agencies have a considerable amount of power – many have the power to act with the
force of law, just as congress or a court does
i. Agencies exercise power by issuing rules and regulations, which are analogous to
statutes. Agencies also:
• Conduct research
• Provide public information
• Produce guidance documents
• Issue opinion letters
• Write internal office manuals
• Inspect premises
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Legislation and Regulation – Donley 2019
ii. Volume – the number of regulations issued far exceeds the number of statutes passed.
Statutes typically delegate power to agencies to make decisions of social and economic
policy
iii. Compliance – 1/10th of GDP is taken up by compliance with federal regulations –
regulations play a large role in public and corporate life, as well as lawyer workload
b. Industry – people in regulated industries often find themselves immersed in continuous
interactions with the relevant regulator
c. Benefits of agencies
i. Expertise – broad access to information, specialized knowledge, and trained staff – low
turnover
ii. Fairness and rationality – agencies are subject to the Constitution and requirements
imposed by statute
• Administrative Procedure Act (APA) – provides default procedures for agencies
to use for making law and policy, if agencies are sued it is usually for violating
this
a. Formal action – requires agencies to conduct a trial-type hearing.
Agencies rarely engage in formal rulemaking, this type of action is mostly
used in formal adjudication (dispute resolution)
b. Informal action – agencies rely on written submissions from interested
parties. Acts as a catch-all for activities that include planning decisions,
strategic decisions, advice, guidance, or resource allocation
c. Even less procedure is required for creating guidance materials and staff
manuals
d. Judicial review and policing – ensures agencies aren’t being arbitrary or
capricious
iii. Interest representation – notice-and-comment rulemaking process allows agencies to
afford affected parties notice and an opportunity to comment on proposed policies
• Incentivizes agencies to consider and accommodate different views
iv. Political accountability – indirectly accountable to the people b/c the President supervises
their decisions
v. Efficacy and Flexibility – agencies have the ability to respond quickly to changing
circumstances; this enhances their legitimacy
vi. Coordination – can work with other agencies to develop consistent and uniform
regulatory regimes
vii. Efficiency – agencies have the resources to consider the expected costs and benefits of
regulations
d. Executive Branch v. Independent Agencies
i. Consistent appointment
ii. Executive branch agencies – appear under the President in the government organizational
chart (cabinet subsidiaries), run by officials who can be fired at will by the President
• Each department is headed by a secretary
iii. Independent agencies – heads serve fixed terms and can only be removed for “good
cause.” Generally run by multi-member commissions or boards, cabinet
Types of Agency Action – CB 473-78, 610-11, 624-27, 643-51
1. Notice-and-comment rulemaking (informal)
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Legislation and Regulation – Donley 2019
a. Basic procedure laid out in 5 U.S.C. 553 of the APA
b. Initiation – agencies initiate for a number of reasons
i. Response to its own mandates
ii. New scientific data
iii. Triggering events – accidents, lawsuits
iv. Call for regulatory review from OIRA
v. Response to recommendations by other agencies or groups
Once an agency decides to proceed with a proposed rule, it issues a Notice of Proposed
Rulemaking (NPRM) that is published in the Federal Register. An NRPM must contain
vi. a reference to the legal authority under which the rule is promogulated,
vii. terms or substance of the proposed rule, and
viii. a statement on the time and place of public proceedings
c. Conducting the process
i. After publishing the NRPM in the Federal Register, it must provide reasonable time for
parties to submit written comments on the proposed rule. This replaces a hearing or trial
ii. After receiving comments, an agency sometimes realizes that an additional rule is worth
considering – if a proposal is not a “logical outgrowth” of the existing proposal, the
agency must conduct a new round of notice-and-comment, by issuing an SNPRM →
secondary round of N&C
d. Completing the process – 30-day grace period
i. After considering comments, agencies issue a final rule. The APA requires a “basis and
purpose” statement in every rule – puts forth the rationale and legal authority of the rule
1. This helps facilitate judicial review if any problems come up
Agencies will sometimes add an impact analysis section for rules that deal with business
or industry. If an agency wants to rescind or amend a rule, it can’t – it just has to make a
new one.
2. Formal adjudication → orders, can be required by statute
a. Analogous to a judicial bench trial – parties introduce evidence [federal evidence rules do not
apply], conduct cross-examinations.
i. Trial court judges do not have to justify their decisions – Administrative Law Judges
(ALJs) do – the APA requires them to include a statement of findings and conclusions,
and the reasons or basis thereof with every decision
b. The APA prohibits communication between interested parties outside of the agency and agency
decision makers, including ALJs and appellate review bodies or offices
c. Formal adjudication is retroactive and has fewer opportunities for public participation
i. Agencies have discretion to choose between formal adjudication and noce-and-comment
rulemaking
d. Initial decisions may be appealed within the agency. Final authority of the agency is vested in the
agency head or commission
3. Guidance/informal adjudication
a. Interpretive rules, policy statements, and rules of agency organization, procedure, or practice are
all forms of guidance – exempted from the requirements of notice-and-comment rulemaking.
i. Not legally binding, but the agency has the obligation to make guidance materials widely
available
1. There is an effort to follow guidance policies, though they are not binding
ii. Agencies use them to indicate how it will implement a statutory or regulatory regime
b. Nina Mendelson
i. Volume of guidance is considerably larger than rules
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Legislation and Regulation – Donley 2019
ii. Guidance rules can closely resemble legislative rules, giving them the nickname of
“nonlegislative rules”
iii. Though they are not legally binding, guidance rules often prompt regulated entities to
change their behavior – they establish law for those unwilling to suffer the ill-will of
challenging the agency in court
iv. Reasons to follow/use guidance rules:
1. Cheap compared to notice-and-comment
2. Flexibility
3. Not legally enforceable → avoid litigation and adverse judicial rulings
4. Not published in Federal Register → less chance of congressional oversight or
media attention
5. Internal policy → policing employees, unrelated to legislative process
6. Allows agency to experiment with new approaches
7. Supplement legislative rules
4. Agency motivations
a. Capture theory – agencies dominated by regulated industry
b. Iron triangle – agencies caught between Congress and regulated industry
c. Government agency can occupy one of four kinds of political environment:
i. Dominant interest group control/client politics (SCIENCE, FCC)
1. High per-capita value of benefits and low per-capita value of costs – interest
groups/agencies have incentive to organize and press for the law
ii. Dominant interest group hostile/entrepreneurial politics (FDA)
1. High per-capita value of costs and benefits – incentive to organize to oppose the
proposed law
2. Often born out of an effort to “punish” a certain industry
3. Continuously working against its interest groups can be difficult
4. Agencies born of punishment are at risk of capture (being dominated by industry)
iii. Conflicting interest groups (EPA – someone is always mad at the EPA.)
1. Opposing forces hold the agency in the middle – high per-capita costs and
benefits, strong incentive to organize and press their competing claims
iv. No important interest group/majoritarian politics
1. Widely distributed benefits and widely distributed costs – nobody cares enough to
take action either way
a. Low per-capita costs and benefits
5. Rules v. Orders – analogue of § v. CL
Rules
Orders
Prospective, binding on all regulated entities
Retrospective, binding on party @ issue
Presidential Control of Agency
1. President asserts control to ensure that agency action roughly tracks administration preferences – helps
exec implement agenda and enhance prospects of reelection, possibly building a legacy
2. President also has a responsibility to supervise agencies – Constitutional duty to “take care that the law
is faithfully executed”
1. Unitary executive theory – take care clause + vesting clause → obligation to supervise all agency
→ independent agencies impossible
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3. Normative implications
1. Presidential control enhances accountability
2. Presidential control improves efficacy – improved coordination that avoids redundancy and
confliction in regulation
3. Presidential can spur a sluggish agency into action or require agencies to consider other factors
(i.e. cost-benefit analysis)
i. Improves efficiency
4. Control of agency personnel
1. President can appoint and fire agency heads – removal can be politically costly
2. President cannot fire heads of independent agencies at will, but can appoint the commissioners or
board members – can also select the chair of the agency from a board
i. President also has influence over independent agency budget negotiations
ii. President can control independent agencies through executive agencies that work with
them
5. Control of appropriations
1. President influences agency funding – can recommend budget cuts, delaying or rescinding of
funds
i. President cannot reject individual budget items in an appropriations bill – Line Item Veto
Act of 1996 attempted to give President authority to cancel certain items → ruled
unconstitutional in Clinton v. City, President alone cannot amend a duly-enacted
appropriations statute
ii. Line-item veto: good and bad
1. Good: should be able to cancel things like pork-barrel spending to reduce budget
deficit
2. Bad: interest group influence
6. Regulatory Planning and Review
1. Cost-benefit analysis is one of the most important tools for Presidential control of agencies
i. Historical → emerged in the 1970s as a means of controlling inflation and downsizing
government
1. Reagan → 1982, issues an executive order creating the OMB and OIRA
2. HW Bush → retains OIRA, adds Council on Competitiveness
3. Clinton → retains OIRA, abolishes Council on Competitiveness
4. Bush → extended regulatory review past proposed rules to proposed guidance
documents, installed presidentially selected Regulatory Review compliance
Officer in each executive agency
5. Obama → revokes Bush version, returning the executive order to the form that
existed between 1993 and 2007. Required agencies to perform retrospective
analysis of existing rules in 2011
2. Executive orders note
i. Binding on executive branch institutions or officials to whom they are directed, create no
cause of action against the government, and apply only to the extent permitted by law –
not binding on citizens
ii. Published in federal Register and Code of Federal Regulations
iii. President can revoke or amend an executive order at any time
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677-80
7. Return and Prompt Letters
1. OIRA issues these to communicate its preferences in response to information about planned or
proposed regulations
i. Return letter → remit proposed regulations to the agency that produced them for
reconsideration, includes explanation and suggestions for improvement
ii. Prompt letter → addresses an agency’s plans or priorities for a given year
1. May suggest that an agency explore a certain issue, speed up on a given issue, or
consider rescinding or modifying a rule
OIRA requests a response letter, usually within 30 days. If OIRA does nothing, the agency can
go forward. Independent agencies have to submit their plans, but are not required to have
prospective rules reviewed by OIRA.
686-87
8. The Debate About Regulatory Planning and Review
1. For OIRA:
i. Improves legitimacy of agency action – unelected bureaucrats made accountable to
elected officials
ii. Coordination function and cost-benefit focus improves the efficacy and efficiency of
agency rulemaking
1. Ensures that there is no conflict or redundancy
iii. Outsider’s view of cost-benefit – agencies often tunnel vision their plans, overestimating
benefits and underestimating costs
iv. OIRA can spur dilatory agencies into action
2. Against OIRA:
i. Cost-based veto
1. Some risks are difficult to monetize
2. OIRA focuses more on costs than benefits – systematic undervaluing of
regulation
3. Weakens rules that impose high costs as opposed to strengthening rules that
promise large benefits
4. OIRA employs people who have been around since Reagan – committed to
deregulation
ii. OIRA has neither the time nor staff to perform review in an adequate manner
iii. OIRA intervenes too late in the rulemaking process
iv. OIRA process is not open, but a “secret conduit by which regulated entities can exercise
undue influence over the regulatory process”
25-37
9. Morrison v. Olson
1. 487 U.S. 654 (1988)
2. Facts
i. Congress passed the Ethics in Government Act to provide accountability after Watergate.
→ appoint counsel after AG investigation
ii. One provision authorized the AG to appoint an independent counsel to investigate highlevel civil officials in a special court called the Special Division (appoints counsel)
iii. The AG had sole removal power for cause – 596(a)(1)
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Legislation and Regulation – Donley 2019
iv. Independent counsel office terminates when he or she notifies the AG that he or she has
completed or substantially completed any investigations or prosecutions pursuant to the
act – 596(b)(1)
v. Olson, a high-level EPA official, was investigated. Challenged a subpoena from the
independent counsel and said she (Morrison) had no authority to act
3. Issues
i. Did the AG having sole appointment power violate the Appointments Clause under
article II of the Constitution?
1. Allows appointment of a principal officer by someone other than the President –
gives rise to the issue of whether Morrison was a principal officer or not
ii. Did the Act violate separation of powers?
4. Procedural history
i. Trial court → Morrison wins
ii. Appeal → Reverses, independent counsel is principal officer
iii. SCOTUS → Reverses appellate court
5. Majority – Rehnquist
i. Requirement that officers be chosen by the President and approved by the Senate only
applies to principal officers – Morrison is not one
1. Morrison is subject to removal by a higher executive branch official (AG) – she
may not be subordinate, but she is in some way inferior in rank and authority
2. Morrison’s office has certain, limited duties as vested by the Act
3. Morrison’s office is limited in jurisdiction
a. Only allowed to investigate if suspected of serious federal crimes
b. Can only act within the jurisdiction granted by the Special Division and
AG
4. Morrison’s office is limited in tenure
Olson’s response: even if Morrison is an inferior officer, the Appointments Clause does
not give Congress the power to delegate power to appoint to someone outside the
Executive branch – Rehnquist says no, that interbranch appointments are covered for
inferior officers. It is not impermissible for Congress to vest the power to appoint
independent counsel in a specially created federal court
^having exec investigate its own conduct is illogical
ii. Constitutionality
1. Does AG’s power to remove interfere with President’s constitutionally appointed
functions?
a. No
2. Does the Act violate separation of powers by reducing the President’s ability to
control the prosecutorial powers wielded by the independent counsel?
a. No
3. Cases cited
a. Bowsher → Congress can’t keep the power to remove officers who
execute the laws for itself
i. Rehnquist distinguishes
b. Myers → Congress’s attempt to involve itself in the removal of an
executive official was sufficient to invalidate the statute
i. Rehnquist distinguishes
c. Humphrey’s → Presidential removal power is not all inclusive in respect
to civil officers (except those in the judiciary) – depends on the category
of agency. With regard to quasi-legislative/judicial agencies, the fact that
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Congress created the agencies includes power to fix tenure and forbid
removal except for cause
i. Constitution does not give POTUS an “illimitable power of
removal”
Olson argues the “pure executive function” distinction – Rehnquist rejects.
4. Rehnquist: “we do not see how the President’s need to control the exercise of
removal is so central to the functioning of the Executive branch… nor do we think
that “good cause” removal burdens the President’s power… the Executive,
through the AG, retains ample authority”
6. Dissent – Scalia
i. President is supposed to have exclusive control over a purely executive function
(conducting prosecutions)
ii. Independent counsel, who is subordinate to no one, doesn’t logically qualify as an
inferior officer
1. Limitations on removal violates Humphrey’s
Congressional Control of Agencies
CB 183-86
1. Congress tends to forgo specificity and delegate to agencies
a. Constitutional limits
i. Against: Congress is vested with legislative power and should not delegate to any other
institution
1. SCOTUS has heard this argument many times, but has only struck down
legislation on this basis twice
2. NIRA – intended to stem economic effects of the Great Depression, granted
POTUS authority to approve codes that ensured fair competition across the
economy, struck down by SCOTUS for the following reasons:
a. General license to improve economic conditions
b. Reached virtually every aspect of the economy
c. Codes were set by members of the industry to which they applied –
POTUS just stamped them with his approval
ii. Court generally goes out of its way to uphold broad delegating statutes as long as they
contain an intelligible principle to constrain the agency
1. Intelligible principle → language in the statute that guides the agency on its
mission; can be as vague as telling the agency to regulate to avoid “unreasonable
risk”
iii. Pragmatic justification
1. Delegation is unavoidable given the demands on modern government
2. Once courts allow for some delegation, it is not the court’s place to decide which
degrees of delegation are appropriate and which are not – becomes a political
issue
3. Courts can address concerns over broad delegation through statutory
interpretation – to limit agencies, courts can narrowly interpret statutes
Grundy v. United States
139 S. Ct. 2116
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1. Facts: Herman Grundy, a pre-Act sex offender, was convicted of violating 20913(d) – failing to register.
He had been convicted for sexually assaulting a minor in Maryland, served his prison sentence, and
moved to New York.
2. Text at issue: SORNA, specifically 20913(d)
a. AG has authority to:
i. Specify the applicability of the requirements to pre-act offenders
ii. Prescribe rules for registration of pre-act offenders and others who cannot meet the
registration requirements in subsection (b)
3. Issue: does 20913(d) unconstitutionally delegate broad authority to the AG?
a. No.
b. Sub-issue: did Congress supply an intelligible principle for delegation within SORNA?
i. Yes.
4. Reasoning:
a. Reynolds → Court has already interpreted 20913(d) to require the AG to apply SORNA to all
pre-act offenders as soon as feasible
i. Broad definition of sex offender and use of the word “comprehensive” implies that
Congress intended SORNA to deal with the offenders that had evaded the system
ii. Legislative history – supporters of the bill made statements about the importance of
registering offenders who had been lost to the system
iii. Instant registration of pre-act offenders isn’t feasible for Congress – on this
understanding, the AG’s role in 20913(d) was to apply SORNA to pre-act offenders as
soon as he thought feasible to do so
Agencies and Courts – Scope of Judicial Review
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.
435 U.S. 519 (1978)
1. Facts
a. The Atomic Energy Commission (AEC) grants licenses to private companies to operate nuclear
power plants and ensures they properly dispose of their waste. The agency decided to address
waste disposal on a general basis through notice-and-comment rulemaking
b. AEC issued the rule and granted Vermont Yankee its license → the Natural Resources Defense
Council (NRDC) challenged it, argued that the rule was invalid and the agency could not rely on
it to deal with waste disposal
c. 1972 rule → required an environmental impact analysis as part of licensing, but the AEC refused
to revisit the Vermont Yankee license
i. Reviewed 40 comments, held a two-day hearing
ii. No discovery or cross-examination
2. Lower courts
a. In the absence of effective rulemaking, the AEC must deal with the environmental impact of fuel
reprocessing and disposal in individual licensing proceedings
i. Invalidates rule?
b. Proceedings were inadequate, lower court overturns the rule and remands the Vermont Yankee
license for further proceedings
3. Issue
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a. Did the agency fail to use sufficient procedures in promulgating the rule?
4. Ruling → No.
a. AEC acted within its statutory authority when it considered the back end of the fuel cycle in
individual licensing proceedings
i. AEC has published a pamphlet that recognizes that these wastes pose a severe health
hazard → wastes constitute “adverse environmental effects which cannot be avoided
should the proposal be implemented”
ii. This was in response to Vermont Yankee questioning whether the AEC can consider the
environmental impact of the fuel processes when licensing nuclear reactors
b. Absent constitutional constraints or extremely compelling circumstance, administrative agencies
should be free to make their own rules of procedure and pursue methods of inquiry that allow
them to carry out their duties
i. Compelling agencies to work so closely with courts “runs the risk of propelling the court
into the domain which Congress has set aside exclusively for administrative agency”
[SEC v. Chenery]
c. The APA does not establish lower procedural bounds – the APA is the ceiling in procedure
requirement, and the Constitution is the floor
i. NRDC argues that the APA establishes lower procedural bounds, and that a court may
routinely require more than the minimum when an agency’s rule addresses complex or
technical factual issues or issues of great public import
ii. Reasons for construing the APA as a ceiling:
1. Judicial review would be totally unpredictable, no consistency in determining the
“best” or “correct” result – would push agencies to adopt full adjudicatory
procedures in every instance
a. Agency action would be constantly overturned
2. Courts review cases on the record produced, not the amount of information the
agency had when it made the decision
a. Would compel agencies to use rulemaking processes that are associated
with adjudicatory hearings
b. Makes rulemaking less adaptable and flexible, forces less efficient
regulation
3. Burdens on courts – as agencies grow, courts have less capacity to police them
4. This standard of review misconceives the nature for the standard of judicial
review of agency rule – it will do nothing but interfere with the process prescribed
by Congress
d. The challenged rule does not find sufficient justification in the administrative proceedings to be
upheld in court
e. When individual rights are at stake in adjudication, courts can require more process than
Congress demands to satisfy due process
SEC v. Chenery Corp.
322 U.S. 194 (1947)
1. Facts
a. The SEC denied a corporate reorganization through informal adjudication, citing that it was
inconsistent with federal law
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b. Chenery challenged the denial → agency’s position had not been asserted through notice-andcomment, so agency could not reach that decision through only informal adjudication
2. Issue
a. Does the SEC have to promulgate a rule announcing its interpretation of the law before it
adjudicates that position against an individual party?
3. Ruling → No. Unless Congress requires otherwise by statute, agencies are free to act according to
whatever mechanism they want
a. Court notes that it would have been preferable that the agency act through N&CRM, but not
required
b. Agency had a duty to act on the proposal – court did not want to force agency to act against its
own interpretation of the law because it hadn’t regulated yet
i. Good reason for agencies to delay regulation – avoid rushed decision making,
unforeseeable events, gather expertise
c. Judicial review of administrative orders is no different from other administrative action
Appalachian Power Co. v. EPA
208 F.3d 1015 (D.C. Cir. 2000)
1. Facts
a. Electric power companies & trade associations representing the chemical and petroleum
industries petitioned for a review of the EPA’s guidance document that allegedly imposed
unauthorized requirements on states in connection with their operating permits under the Clean
Air Act
2. Issue
a. Is the EPA’s guidance document subject to APA review?
b. Is the EPA’s guidance document “binding?”
3. Ruling → Yes, Yes.
a. EPA: guidance document is not “binding” → only legislative rules are binding, and a legislative
rule:
i. Is the product of N&CRM
ii. Is published in the federal register
Agency action other than legislative rules can have a binding effect if the agency:
iii. Acts as if a document issued at its headquarters is controlling in that field,
iv. Treats the document in the same manner as it treats a legislative rule,
v. Bases enforcement actions on the policies or interpretations formulated in the document,
or
vi. Leads private parties or State permitting authorities to believe that it will declare permits
invalid unless they comply with the document.
b. EPA’s guidance is not binding in a practical sense, but petitioners are not challenging the
guidance in its entirety
i. Petitioners are challenging the portion of the guidance that gives the agency’s settled
position → plans to follow this position in reviewing permits and compliance
c. Agency action is not final because it is binding – action being final requires that the action:
i. Mark the consummation of the agency’s decision-making process
1. EPA guidance satisfies this – the document in question was titled “EPA Draft
Final Periodic Monitoring Guidance”
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ii. Must be one by which rights or obligations have been determined or from which legal
consequence will flow
1. Concluding paragraph – “the policies set forth in this paper are intended solely as
guidance…” → boilerplate language
2. The guidance “commands, requires, orders, and dictates” from beginning to end
d. Guidance is subject to change – but so are all laws
i. Cites constitution
e. Agencies can’t change promulgated rules with guidance – must use N&CRM if the rule
significantly expands the scope of a rule
f. Test → twofold, whether the rule
i. Spells out a duty fairly encompassed within an existing regulation, or
1. Guidance is OK
ii. In a practical effect, creates a new regime, a new legal system, or significantly expands
the scope of a rule
1. N&CRM required
Judicial Control of Agency Statutory Implementation
1. Judicial authority in reviewing agency action depends on statute – statutes can authorize courts to review
agency action or prevent them from doing so, but most federal statutes do neither.
a. APA §702 – Right of Review
i. A person suffering a legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof
b. APA §704
i. Agency action made reviewable by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial review
c. APA §706 – specifies court standards for review
i. N&CRM → courts are directed to hold unlawful and set aside agency action that is
“arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the
law”
1. Arbitrary and Capricious Test
ii. Formal procedures → subject to the requirement that they will be deemed unlawful if
they are “unsupported by substantial evidence”
These standards are default provisions, just like the rest of the APA. Statute can vary them – OSHA
authorizes reviewing courts to set aside a N&C rule if it is “unsupported by substantial evidence”
Reviewability
1. The Reviewability Doctrine bars courts from hearing certain statutory claims
a. Limits judicial review and control of agency action
b. The APA creates a broad, general right to judicial review (APA §702)
2. APA §701(a)
a. Congress may preclude judicial review by statute, either explicitly or implicitly
b. Judicial review is precluded where “the agency action is committed to agency discretion by law”
i. i.e. decision is so discretionary that courts have no law to apply in evaluating validity
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Heckler v. Chaney
470 U.S. 821
1. Facts
a. Death row inmates petitioned the FDA to use its enforcement powers to prosecute those
distributing, selling, or using drugs for lethal injections, arguing that they were guilty of
misbranding and off-label distribution. Petitioners argued…
i. Drugs had not been approved for use in human executions
ii. Drugs had not been tested for use in human executions → likely to be administered by
untrained personnel → likely that the drugs would not induce the quick and painless
death intended
iii. FDCA’s requirements for approval of “new drugs” applied since the drugs were being
used for a new purpose → FDA was required to approve the drugs for human execution
prior to their distribution in interstate commerce.
iv. Petitioners wanted the FDA to…
1. Take various investigatory and enforcement actions to prevent perceived
violations
2. Affix warning labels to the drugs that stated that they were unapproved and
unsafe for human execution
3. Send statements to drug manufacturers and prison administrators stating that the
drugs should not be used in executions
4. Adopt procedures for seizing the drugs from state prisons
5. Recommend prosecution of all those involved in the chain of distribution
b. FDA declined to exercise its enforcement discretion, inmates sued the FDA
2. Procedural history
a. District court grants summary judgment to petitioners → appellate court reverses → SCOTUS
reverses appellate court, reinstating summary judgment
b. FDA in re inmates…
i. Refused to take the requested actions listed in IV
ii. FDA’s jurisdiction in the area was generally unclear, but should not interfere with state
criminal justice systems
iii. If FDA clearly did have jurisdiction, it would be authorized to decline to exercise it under
their discretion to decline to pursue certain enforcement matters
1. Enforcement proceedings are initiated when there is…
a. A serious danger to public health
b. Scheme to defraud
3. Issue
a. Is an agency decision declining enforcement unreviewable?
4. Ruling
a. Yes.
5. Reasoning
a. APA §701(a)(2) → excepts judicial review where agency action is committed to agency
discretion by law
i. Review is not to be had if the statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion
b. Distinguishing Overton Park
i. Did not involve agency refusal to take action – involved an affirmative act of approval
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ii. “an agency’s decision not to prosecute or enforce is generally committed to an agency’s
absolute discretion”
c. Judicial review is generally unsuitable for agency refusal to enforce
i. Agencies cannot generally act against each violation of the statute it is charged with
enforcing → they are far better than courts to judge which actions to enforce
ii. Agencies refusing to enforce do not exercise power over liberty or property rights → not
exercising power over areas that courts traditionally protect
iii. Agencies refusing to enforce is analogous to a prosecutor in the Executive choosing not
to indict – long regarded as an exclusive power of the Executive (Take Care clause)
d. Congress did not intend to alter the common law of judicial review of agency action when
enacting the APA
e. Misconstruing of FDCA §333 → criminal sanctions
i. Respondents argue that §333 recommends prosecution of every violator of the Act
ii. Court does not want to adopt such a sweeping meaning
iii. FDCA charges the Secretary of an agency with recommending prosecution – criminal
prosecutions must be instituted by the AG, effectively giving the agency complete
discretion of enforcement
f. Misconstruing of FDCA §306 → Secretary is not required to recommend minor violations for
prosecution
i. Respondents argue that this gives the negative inference that the agency is required to
report all major violations
ii. Court strikes this down
g. Should be left to Congress, and not the courts, the decision as to whether an agency’s refusal to
institute proceedings should be judicially reviewable
6. Brennan concurrence
a. Nonenforcement is reviewable in cases where…
i. Agency flatly claims that it has no statutory jurisdiction
ii. Agency engages in a pattern of nonenforcement of clear statutory language
iii. Agency has refused to enforce a regulation lawfully promulgated and still in effect
iv. Nonenforcement violates constitutional rights
7. Marshall concurrence
a. Precluding review could cause agencies to “become stagnant backwaters of caprice and
lawlessness”
i. “discretion can be a veil for laziness, corruption, incompetency, lack of will, or other
motives”
8. Risk of bad results
a. Majority incentivizes agencies not to enforce → for example, safety depends on the FDA going
after manufacturers for making adulterated or misbranded drugs
b. Marshall counters with the fact that it shouldn’t be assumed that the government is acting with
good intentions
Timing
9. Ripeness & the “case” or “controversy” requirement
a. A case brought too soon is not the subject of a live case or controversy – why should a court
intervene if a case might never materialize?
b. If issue depends on facts that might arise through enforcement → not fit for judicial review
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c. If issue is purely legal (i.e. a question of statutory interpretation) → fit for judicial review
10. Finality
a. APA §704 → only final agency action is subject to judicial review
b. Final rules issued through N&CRM are final, but NPRMs are not
c. Guidance documents can be interpreted as final (Appalachian Power)
Franklin v. Massachusetts
505 U.S. 788
1. Facts
a. MA lost a seat in the House after the 1990 census, which was the first to count military members
abroad as residents in their “home of record” – more often than not, the “home of record” is not
the member’s home state
b. MA sued, claiming the Secretary of Commerce acted arbitrarily
2. Issue
a. Was the Secretary’s report to the President “final agency action?”
3. Ruling
a. No.
4. Reasoning
a. The “final action” is when the President calculates and submits the apportionment to Congress
b. President had the authority to change the Secretary’s recommended apportionment, though rarely
did so
c. President does not fall under the APA – it does not include him in its exclusions, but out of
separation of powers concerns, SCOTUS excludes him
Appalachian Power II
208 F.3d 1015
1. Facts
a. Review of EPA’s guidance directing states to consider whether the state and federal emissions
standards have sufficient monitoring
2. Issue
a. Does the guidance constitute final agency action, making it subject to judicial review?
3. Ruling
a. Yes.
4. Reasoning
a. Final agency action test → action must…
i. Mark the consummation of the agency’s decision-making process
ii. Be one by which rights or obligations have been determined, or from which legal
consequences will flow
b. Petitioners are negotiating Title V permits, and State authorities, with EPA’s guidance are
insisting on continuous opacity monitors for determining compliance with opacity limitations
although the applicable standard specifies EPA Method 9
i. The guidance in this case is final agency action → it reflects a settled agency position that
has legal consequences for both State agencies and companies regulated by them
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Citizens to Preserve Overton Park, Inc. v. Volpe
INFORMAL ADJUDICATION
401 U.S. 402
1. Facts
a. Secretary of Transportation approved the construction of a six-lane, high-speed highway through
Overton Park, located in the center of Memphis.
b. Text →
i. 4(f) Secretary of Transportation cannot authorize the use of federal funds for highways
through public parks if…
1. A feasible and prudent alternative route exists
If no such route is available, he may approve only if there has been “all possible planning
to minimize harm” to the park
c. History of route
i. Route was approved in 1956/66
ii. DOT prevented release of federal funds until the Secretary determines whether the
requirements of 4(f) had been met
iii. Secretary announces he agrees with city officials in 1968
iv. State acquires right-of-way in Overton Park in 1969
v. Final approval was not announced until November 1969, after Congress had reiterated
that highway construction through public parks was to be restricted
1. No statement of Secretary’s factual findings accompanying the announcement
2. Issue
a. Was the approval of the highway “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law?”
3. Procedural history
a. District Court and Appellate Court found that formal findings were not necessary and refused to
order the deposition of the former administrator
b. Affidavits contained no basis for a determination that the Secretary had exceeded his authority
4. Holding
a. Evidence insufficient for review, remanded
i. Affidavits were “post-hoc rationalizations”
1. Courts require rationale at the time of decision-making
5. Arguments
a. Petitioners
i. Secretary did not make an independent determination on the issue – rubber-stamped the
city council’s decision
ii. It would be feasible and prudent to route I-40 around Overton Park
1. Tunnels
iii. Present plan does not include all possible methods for reducing harm
iv. Secretary has wide discretion
v. Secretary’s decision not supported by “substantial evidence” and “unwarranted by facts”
b. Respondents
i. Not necessary for Secretary to make formal findings
ii. Secretary exercised his own judgment
iii. Secretary does not have wide discretion, has to balance a wide range of competing
interest
c. Affidavits
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i. Respondents produced documents that indicated that Secretary had made his own
decision
ii. Petitioners produced contradictory documents
6. Reasoning
a. The statute as issue is a “plain and explicit bar” to the use of federal funds for highway
construction through parks
i. Approvals can only be made for particular reasons – Congress has specified only “a small
range of choices” that the Secretary can make
b. Unclear whether the approval is for proper reasons → no way for the court to determine whether
the Secretary exceeded his authority
c. Courts evaluate agency action at the time the decision it made
d. Courts cannot substitute their judgment for an agency’s
e. Respondents’ “balancing of interests” argument
i. If the Secretary’s discretion consisted of this, he could always use park lands – they’re
cheap, no one has to move, government already owns them
ii. If Congress intended these factors to be equal with preservation, there would be no need
for the statutes
f. Standard of review – argument v. by petitioners
i. Both of the arguments by petitioners fail
ii. Substantial evidence test → only warranted when agency action is based on a public
adjudicatory hearing
1. Secretary’s decision was not an exercise of rulemaking
iii. APA requirement → for authorizing federal $ for highway construction through parks, it
only requires that there is a public hearing by local officials for the purpose of informing
the community about the project
iv. De novo review → only authorized when the action is adjudicatory and agency
factfinding is inadequate
g. APA §706 → requires the court to engage in a substantial inquiry
i. Scope of authority
1. Did Secretary properly construe his authority to approve the use of parkland?
2. Did the Secretary reasonably believe that there were no feasible alternatives?
ii. Arbitrary, capricious, abuse of discretion, otherwise not in accordance with the law
1. Was the decision based on a consideration of relevant factors?
2. Was there a clear error of judgment?
iii. Did the decision follow necessary procedural requirements?
h. Hard look doctrine
i. Whether the agency took a “hard look” at the problems and engaged in reasoned
decision-making
1. If not → review
2. If yes → court can’t do anything
ii. Agencies responded to this by carefully documenting their decisions to protect
themselves from reversal
Department of Commerce v. New York
GUIDANCE DOCUMENT
139 S. Ct. 2551
1. Facts
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2.
3.
4.
5.
a. Secretary of Commerce issued a decision to reinstate a citizenship question on the 2020 Census
(apparently at the request of DOJ). Government was sued, plaintiffs sought depositions for highranking Executive officials to determine the Secretary’s subjective motivations. Government
filed a petition asking the Court to exclude factfinding beyond the official records or review the
appellate court decision itself. Lower courts blocked Secretary from reinstating the citizenship
question.
b. DOJ wanted the citizenship question to “obtain better data” and to enforce the Voting Rights Act
(VRA), specifically the provision where it banned diluting the influence of minority voters by
depriving them of single-member districts
i. Its data from the American Community Survey wasn’t ideal – wasn’t reported to the level
of the census block, big margins of error, did not align in time with the census-based
population counts used to draw districts
c. Secretary “carefully considered” the possibility that including a citizenship question would
decrease the response rate – after reviewing “limited empirical evidence” he concluded that it
was not possible to determine definitively whether inquiring about citizenship would materially
affect responses
d. Need for accurate citizenship data > lower response rates
Procedural history
a. District court set aside the decision → Secretary acted arbitrarily and violated the Census Act.
Action not supported by evidence and rationale was pretextual
i. Govt → decision wasn’t judicially reviewable in the first place
Issue
a. Was the Secretary’s decision to include a citizenship question arbitrary, capricious, etc.?
b. Was it improper for the lower courts to order extra discovery?
Holding
a. Yes
b. No
Rationale
a. Roberts
i. Decision is judicially reviewable under the APA → Census Act constrains Secretary, this
is not a case where there is “no law to apply” → judicially reviewable
ii. Bureau had recommended using administrative records alone because it had high
confidence that it could make a model estimating the citizenship of 35 million people for
which data was not available
1. Secretary disagrees with this, District Ct. overrules → Roberts says the District
Ct. improperly substituted its judgment for that of the agency
iii. Pretextual basis for Secretary’s decision → invalidates guidance document’s authority
1. In order to permit meaningful judicial review, agency must disclose the basis for
its action
2. In reviewing action, a court is limited to the existing record
3. Courts may not reject an agency’s stated reasons for acting because it may have
had other unstated reasons
4. General rule is to avoid inquiring into the mental processes of administrative
decisionmakers, but there are exceptions (Overton Park)
District Court used the Overton Park exception in ordering extra-record discovery.
1. VRA played an insignificant role in the decision-making process
a. Decision to reinstate the citizenship question cannot be adequately
explained in terms of enforcing the VRA
b. Secretary went to “great lengths” to elicit the request from DOJ
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2. Secretary was determined to reinstate a citizenship question from the time he
entered office
iv. Explanation for agency action is incongruent with what the record reveals about the
agency’s priorities and decision-making process
b. Thomas → no one proved the VRA did not factor in
i. District Court’s granting of extra-record discovery relied on four categories of evidence
1. Evidence that Secretary was predisposed to reinstate the citizenship question
2. DOJ hadn’t expressed a desire for more detailed data until Secretary solicited its
view
3. Secretary overruled objections of agency staff
4. Secretary declined to order more testing of the question
None of this comes close to bad faith or improper behavior – the evidence establishes that
DOC and DOJ jointly believed that the citizenship question was important
ii. First time Court has invalidated agency action as pretextual → opens a Pandora’s box of
issues for the court, opponents of executive action now have strong incentives to derail
them
c. Breyer
i. Agrees that the Secretary provided a pretextual reason, but also thinks Secretary violated
the APA because it was arbitrary and capricious
ii. Secretary failed to “articulate a satisfactory explanation” for his decision, “failed to
consider important aspects of the problem,” and “offered an explanation for his decision
that runs counter to the evidence”
iii. Census Act
1. Secretary shall authorize the use of statistical sampling in collecting demographic
information
2. Secretary shall acquire and use information available from administrative sources
instead of conducting direct inquiries
Overall intent → keep the short form short so as to not burden recipients and discourage
them from responding
iv. Secretary’s decision rests on weighing diminished responses against potentially offsetting
advantages
v. Bureau → 630,000 households would not respond (conservative estimate), responses
could be greater than -5.1%
vi. Secretary → points to perceived shortcomings in Bureau’s analysis (claimed that Bureau
did not factor short/long form response rates in, Bureau said it accounted for this).
1. Claimed that Bureau was not able to isolate the exact decline caused by the
citizenship question alone (Bureau said it was a reasonable inference that a good
chunk of it could be caused by inclusion of a citizenship question).
2. Relied on two outside stakeholders
a. Nielson → its respondents were paid, not surprising that they had high
response rates
b. Former Bureau officials → suggested that potential impact on response
rates was “limited” – no reason to expect former officials to provide more
extensive analysis than the Bureau
vii. Secretary → adding a citizenship question, even if it decreases responses, increases
accuracy and completeness
1. Record shows that citizenship question leads to less accurate and complete data
viii. Bureau → had data for 90% of the population and could project the last 10% accurately
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ix. Agency supports decision on the ground that it will improve accuracy, when it will really
harm the accuracy!!!
x. Secretary assumed that answers to the citizenship question would be more accurate than a
model hahahahahahaahahahahahahahahahahaha
Massachusetts v. EPA
549 U.S. 497, 127 S. Ct. 1438, 167 L.Ed.2d 248
1. Facts
a. Environmental groups asked the EPA to regulate greenhouse gas emissions from new motor
vehicles under §202 of the Clean Air Act (CAA).
b. EPA rejected the petition, environmental groups sued. EPA has 2 reasons for rejecting…
i. CAA does not authorize EPA to issue mandatory regulations to address climate change
ii. Even if it did, it would be unwise to do so
c. This is an agency’s decision not to regulate, not to enforce – distinguishes Heckler. Courts
review decisions not to regulate because…
i. Refusals to regulate are less frequent, more apt to involve legal analysis, and subject to
special formalities (public explanations)
2. Issue
a. Does the CAA authorize the EPA to regulate greenhouse gas emissions?
i. If yes, was EPA A&C?
3. Holding
a. Yes – where statute requires agency to regulate and it fails to do so, it is arbitrary and capricious
agency action
4. Rationale
a. Text → “shall by regulation prescribe… standards applicable to the emission of any air pollutant
from any class or classes of new motor vehicles.. which in the Administrator’s judgment cause,
or contribute to, air pollution which may reasonably be anticipated to endanger public health or
welfare”
i. May v. shall → CAA requires agencies to regulate when they find endangerment
ii. “Any” → CAA repeatedly uses the word “any” – statute is unambiguous, “any” air
pollutant includes carbon dioxide
b. EPA offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or
contribute to climate change
5. Dissent – Scalia
a. Focuses on “judgment” – EPA shall regulate any air pollutant, which in the Administrator’s
judgment…
b. EPA only must regulate when there is a judgment that the air pollutant endangers public health –
EPA deferred a judgment and Scalia says they gave reason enough
i. NRC report
ii. No judgment made → no obligation to regulate
Nova Scotia
568 F.2d 240
Facts
1. FDA promulgated a rule establishing heating temperatures for hot-process smoked fish in order to
minimize the outgrowth and toxin formation of spores of a bacteria that sometimes inhabits fish. There
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were reports of infections from 1960-63 that spurred this – “failure to destroy such spores through
adequate brining, thermal, and refrigeration processes is a danger to public health”
a. Rule made it impossible to produce and sell smoke whitefish – Nova Scotia chose to keep
making its product as it always had
2. FDA inspected Nova Scotia and brought suit to enforce compliance
Issue
1. Did the FDA act A&C when promulgating the rule?
Held
1. Yes → the regulation, as it affects non-vacuum-packed hot-smoked whitefish, was promulgated in an
arbitrary manner and is invalid
Arguments
1. Nova Scotia → do not contest that they were not in compliance, but argue that the requirements could
not be met if a marketable smoked whitefish were to be produced. They say that the regulation is invalid
because…
a. FDA acted outside of its scope of authority by statute
b. FDA relied on undisclosed evidence in promulgating the rule, and the rule is not supported by
the administrative record
c. FDA did not produce an adequate statement of the basis for the regulation
Nova Scotia had written to FDA that heating the fish to the prescribed temperatures would completely
destroy the product and suggested alternatives.
Reasoning
1. Inadequate administrative record
a. Judicial review must be based on the whole record, not just the one established in proceedings
b. Key issues:
i. Should this species of fish be considered separately?
1. Yes – burden was on the agency for this
ii. Did the regulation make the smoked whitefish commercially unsaleable?
iii. Did the agency recognize that it would make the whitefish unsaleable and decide that the
public health should prevail?
c. Procedural issues:
i. Did FDA’s failure to disclose data to interested parties make the procedure inadequate?
1. Agencies may resort to their own expertise, but there is no good reason that data
obtained should be kept secret from interested parties
2. When the basis for a proposed rule is a scientific decision, the material should be
exposed for comment – you can’t ask people to make informed comments without
allowing them to read the paper on which the decision is based
a. Effectively rejects meaningful comment altogether → leads to arbitrary
decision-making
ii. Did FDA’s failure to address commercial feasibility make the procedure inadequate?
1. If agency does not take all relevant factors to a decision into account → A&C
2. Concise general statement → was less than adequate
a. Test, McGowan:
i. Includes issues of policy dealt with in the informal proceedings
ii. Why the agency reacted to those policy issues as it did
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b. Public interest superseding commercial feasibility is fine – administrative process just has to
disclose the thought process behind it
State Farm
463 U.S. 29
Facts
1. In 1966, Congress passed the Motor Vehicle Safety Act → authorized the agency to issue safety
standards for cars
2. In 1977, NHTSA issued a rule requiring either airbags or automatic seatbelts
3. In 1980, Reagan comes into office and starts his deregulation agenda. Airbag/seatbelt rule was put on
hold and issued a NPRM to either change the phasing schedule for the rule or rescind it
4. After NPRM, NHTSA rescinds the rule in 1977
Issue
1. Is the removal of a rule a rule itself or inaction?
a. Rule → must go through N&CRM
b. APA defines rulemaking as “any agency process for formulating, amending, or repealing a rule”
2. Was the NHTSA’s rescinding of the rule A&C?
a. Yes – did not consider all aspects of problem
Held
1. On A&C review, court cannot set aside the agency’s decision based on a disagreement about policy.
a. Background Rule: “A court may not set aside an agency rule that is rational, based on
consideration of the relevant factors, and within the scope of authority delegated to the agency by
the statute. . . a court is not to substitute its judgment for that of the agency.”
2. A court can set aside an agency decision as A&C when:
a. “The agency has relied on factors which Congress has not intended it to consider”
b. The agency “entirely failed to consider an important aspect of the problem”
c. The agency “offered an explanation for its decision that runs counter to the evidence before the
agency”
d. The agency’s decision “is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.”
3. The agency must examine the relevant data and articulate a satisfactory explanation that connects the
facts found to the choice made in order to survive the "arbitrary and capricious" test
Reasoning
1. Text → the act authorized the agency to issue safety standards that “shall be practicable, shall meet the
need for MV safety, and shall be stated in objective terms”
a. The standards should be grounded in “relevant available MV data,” be “reasonable, practicable,
and appropriate” for a particular car, and “carry out the purpose of the act.”
2. Agency’s justification for revoking the rule
a. Rule would be less effective than originally thought
i. Manufacturers were overwhelmingly choosing to install automatic seatbelts
ii. Agency could no longer conclude that automatic seatbelts were worth the cost because
the manufacturers were installing them with the option to detach
b. Agency acted A&C because it failed to consider important aspects of the problem
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If the rule gave two choices, and one of the choices was no longer supportable, the agency needed to consider
and justify its decision not to force the other one
Formal Adjudication
Universal Camera v. National Labor Relations Board
340 U.S. 474 (1951)
Facts
1. National Labor Relations Board has jurisdiction to enforce unfair labor practices, has “prosecutors” and
ALJs who hear cases
2. Employee was allegedly fired because he testified against his employer in a different NLRB case
3. Examiner who investigated the case concluded that it should be dismissed because there was evidence
that he may have been fired for unrelated reasons – more senior employees at NLRB disagreed and
brought the charge anyway, NLRB rejected examiner’s findings
Procedural history
1. Second Circuit → grants enforcement of order from NLRB directing that Universal Camera reinstate
back pay and cease + desist from discriminating against any employee who files charges or gives
testimony
a. SCOTUS grants cert to resolve a circuit split
2. Lower court → grants full enforcement
Issue
1. Circuit → whether the Board’s holding that the employee was fired illegally was supported by
substantial evidence
a. Circuit → there was substantial evidence
2. SCOTUS → did the Second Circuit properly conclude that there was substantial evidence?
Holding/Order
1. 2d did not properly conclude that there was substantial evidence → reversed and remanded.
Reasoning
1. 2d failed to consider the examiner’s report, which is part of the “whole record”
a. 2d rejected on the grounds that the Board had rejected the examiner’s report as unreliable – if the
board rejects it as part of the record, 2d thought it should, too
2. Administrative courts can be biased – the “prosecutor” and “judge” can both be on the same side, which
undermines due process
a. Undermines judicial function, too
3. Not reviewing the whole record → courts only have to read one side of the case, usually that which
sustains agency action
4. Legislative history – APA
a. Committee reports → talked about agencies relying on creating their own record, indicated that
courts are to be held to a higher standard and exercise their own “independent judgment” on
consideration of the “whole record”
5. Legislative history – Taft-Hartley
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a. Senate committee report → “it was finally decided to conform the statute to the corresponding
section of the APA where the substantial evidence test prevails”
6. Conclusions from legislative history
a. APA and TH have a common aim – substantial evidence based on whole record
b. Congress has left no room for doubt as to the kind of scrutiny the Court of Appeals must give the
record before the Board
Rule
1. The reviewing court must consider the whole record when doing substantial evidence review for formal
adjudication
a. APA requirement – “whole record” was added after criticism that reviewing courts were only
looking at the “winner’s” record
Allentown Mack Sales and Service, Inc. v. NLRB
522 U.S. 359
Facts
1. Mack Trucks closed its Allentown branch, managers decided to buy it and run it as an independent
dealership known as Allentown Mack
2. Rehired 32/45 of its original employees
3. ALJ → Allentown was a successor to Mack’s collective bargaining obligations – Allentown didn’t want
a union, so it conducted a secret ballot poll to see if there was still support for it
a. Allentown’s poll was held in compliance with procedural standards, but Allentown did not have
a reasonable doubt as to whether the union still had support
4. Union lost 19-13, filed complaint with NLRB
5. NLRB → employer lacked reasonable doubt as to whether the union had support, declared poll illegal
a. NLRB precedent → an employer who believes that an incumbent union no longer has majority
support has three options, two of which have been declared unfair by NLRB
i. Formal, board-supervised election
ii. Withdraw recognition from union and refuse to bargain [UNFAIR]
iii. Internal poll of employee support [UNFAIR]
1. Court has to decide if this standard for polling is rational and consistent with the
NLRA and whether the Board’s factual determinations in this case are supported
by substantial evidence
Issue
1. Was the Board’s determination that the employer lacked reasonable doubt supported by substantial
evidence?
Holding/Order
1. No, reversed and remanded – Allentown was reasonable in being unsure about union support, NLRB
applied too harsh of a standard
Reasoning
1. Irrational for the Board to disregard any of the statements – they disregarded them based on them not
being able to determine whether there was a lack of support, not whether there could be a lack of support
among the workers
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2.
3.
4.
5.
6.
a. Standard is uncertainty about union support, not fact that the employees don’t want it
“Reasonable doubt” cannot require the employer to know that >50% of employees disfavor a union,
because then it would only conduct a poll it knew it would win
If the agency wants to change its standards, it must do so openly so that they may be reviewed. Agency
must apply the standard it sets
a. Here, the agency set a much harsher standard – impeding judicial review by disguising its
policymaking as factfinding
Substantial evidence review → could a reasonable jury come to the same conclusion as the ALJ?
Board systematically undervalued certain evidence and exaggerated others
NLRB’s reasonable doubt test is rational and consistent with the Act, but the way they applied it wasn’t
Breyer Dissent
1. NLRB is the expert and factfinder; it knows when to discredit employee statements, such as when they
are made during interviews or involve hearsay
2. Congress gave the Board the authority to administrate and factfind – Board acted within its authority and
used its expert agents
3. Majority failed to…
a. Focus on the ALJ’s actual conclusions
b. Consider all evidence
4. Majority…
a. Transformed the legal standard that the Board has long administered
b. Disregarded Board’s own precedent
c. Ignored guidance that the Board’s own interpretations have provided
5. Breyer → majority’s opinion will weaken the system for judicial review of agencies
6. Breyer calls the majority out for substituting its own judgment for the agency’s
a. Also questions whether no reasonable jury really could have reached the Board’s conclusion
Benslimane v. Gonzales
430 F.3d 828 (7th Cir. 2005)
Facts
1. Benslimane was a Moroccan citizen who overstayed his visa, claimed that he married an American
citizen and requested residency
2. All of the forms were filed on time and correctly, but the ALJ requested he file a duplicate I-485, which
his attorney wrongly advised him not to do
a. He requested further continuance because the adjudication of his petition had not gone through,
judge denied and ordered he be deported
b. Benslimane appealed to the Board of Immigration Appeals – Board affirmed the immigration
judge’s deportation order even though the I-485 was already filed
3. Benslimane was effectively ordered to be deported because he failed to submit a duplicate form that had
been filed six months earlier
4. Claim for ineffective counsel → barred in most cases by the Board, created 3 requirements to bring the
claim as a “screen to prevent strategic invocation of ineffective assistance”
a. Need an affidavit detailing agreement between client and counsel
b. Showing that allegations of ineffective assistance were communicated to counsel and that
counsel was given an opportunity to respond to them
c. Statement as to whether a complaint was filed against counsel and if not, why not
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Issue
1. Is the order removing Benslimane, which is nondiscretionary and reviewable by the court… allowed?
a. Precipitated by denial of motion for continuance, which is discretionary → government argues
that court has no jurisdiction
Holding/Order
1. No. Reversed and remanded
Reasoning
1. Denial of a motion to continue has the effect of a substantive ruling to adjust statute and is judicially
reviewable
2. Immigration judge cannot arbitrarily deny a motion for continuance – denial of due process (sorta?)
a. Denial is basically just punishing Benslimane for his lawyer being dumb
3. Court can do little about the agency operating below the minimum standards of legal justice, can only
send the case back – correction lies with DHS, DOJ, and Immigration Court
Deference to Agency Interpretations of Law
Skidmore v. Swift & Co.
323 U.S. 134 (1944)
Facts
1. Group of employees was required to stay overnight 3-4 nights a week to monitor fire alarms. Employer
didn’t want to pay them overtime for those hours, which were mostly spent sleeping and eating.
2. Employees → as long as they were required to be at work or within hailing distance, they ought to be
paid
3. Brought suit under Fair Labor Standards Act (FLSA)
a. “working time” → employee not free to do as he pleased – hours spent hanging around waiting
for fire alarms were, but hours spent doing things he would have ordinarily done at home were
not (i.e. sleeping, eating)
4. Congress did not use an agency to determine in the first place what types of “work” fall within the Act –
put that responsibility on the courts
Procedural History
1. District court denied the claim in its entirety, 5th circuit affirms
a. Fire hall duty or any part thereof constitutes working time – but as a “conclusion of law,” the
time that plaintiffs spent in the fire hall subject to call does not constitute hours worked subject
to overtime compensation under the FLSA
i. “performing such pleasurable occupations or performing such personal chores does not
constitute work”
2. 5th circuit did not pay attention to Administrator’s interpretation of the Act; used a blank slate approach
a. Agency opinion matters → more expertise in subject areas, agencies able to offer policy
considerations and suggestions because they are politically accountable
Issue
1. When are courts allowed to give deference to interpretive rules of administrative agencies?
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Holding
1. Reversed and remanded – district and 5th Cir. were wrong
Reasoning
1. No principle of law precludes waiting time from being working time
a. Administrator → answer depends on the degree to which the employee is free to do what he or
she wants
b. General test suggest including all time but eating and sleeping
2. Courts are required to give agencies deference when the agency convinces the court → Skidmore
deference is all about the power of persuasion and on a case-by-case basis
3. Not all agency action is entitled to deference, agency decision is not binding on courts
4. Skidmore deference
a. Thoroughness evident in consideration
b. Validity of reasoning
c. Consistency with earlier and later decisions
d. All factors which give power to persuade, if lacking power to control
5. This isn’t concrete deference – advises that courts give deference when the agency can persuade a court
that its interpretation is right
a. Courts should take agency expertise into account, but it is not controlling – here, the conclusion
was erroneous in its understanding of the law
b. Encourages judicial receptivity to agency interpretations of law
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
467 U.S. 837 (1984)
Facts
1. Amendments to the CAA required power plants to employ certain pollution control technologies if they
were located in areas out of compliance with air quality standards (nonattainment area)
2. Existing plants were grandfathered in, but if the plant is modified in any way to increase emissions, it is
no longer grandfathered and must follow nonattainment rules
a. Plants would rather not follow these rules because installing the technology is expensive – but
they also need to modify their plants eventually to increase production
3. Election of Reagan → EPA changed its interpretation of the nonattainment rules to be more industryfriendly, environmental groups follow suit
a. EPA adopts “bubble” concept – states can treat all pollution-emitting devices within the same
industry the same
4. The EPA promulgated a regulation permitting States to adopt a plant-wide definition of the term
“stationary source.” This definition allowed an existing plant that contained several pollution-emitting
devices to install or modify one piece of equipment without a permit if the overall plant emissions were
not increased by the alteration-a “bubble” concept. National Resources Defense Council, Inc.
(Respondents) petitioned for review in the Court of Appeals for the District of Columbia Circuit, and the
Court of Appeals set aside the regulation.
5. The Amendments were lengthy, detailed and complex. They did not disturb the prior definition of
“stationary source;” but did add a new definition for “major stationary source.”
6. The legislative history of the amendments contained no specific comment on the “bubble concept” or
the question of whether a stationary source was permissible under the permit program.
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Procedural History
1. Lower Court set aside the new EPA interpretation
a. Bubble concept mandatory in programs designed to maintain air quality
b. Bubble concept inappropriate in programs designed to improve air quality
2. Purpose of program → to improve air quality, therefore inappropriate
Issue
1. Were the lower courts wrong in setting aside the EPA’s interpretation of the term?
Holding/Order
1. Yes, reversed and remanded – upheld EPA
Reasoning
1. EPA had been flexible with the definition, the 1980 inflexible definition was a result of court
interpretation – Reagan administration preferred “bubble”
2. Basic legal error → lower court adopted a static judicial definition of the term ”stationary source” when
it decided that Congress had not commanded that definition
a. Interpretation I → bubble theory, 1 plant = 1 stationary source (EPA)
b. Interpretation II → 1 pollution-emitting device = 1 stationary source
3. Statutory definitions
a. 1970 Act defines stationary source to mean…
i. Any building, structure, facility, or installation which emits or may emit any air pollutant
Court → not helpful because of tension between NS and independent words/independent
meanings (EX)
b. 1977 Amendments define “major stationary source” to mean…
i. Any stationary facility or source which directly emits, or has the potential to emit, one
hundred tons per year or more of any air pollutant
Court → not dispositive because the definition is really about the word “major”
4. Purpose
a. Legislative history not helpful in resolving ambiguity – circuit looks to purpose
i. To help environment (NRDC’s favor)
ii. Balance environmental interests with economic interests of industry (Chevron’s favor)
iii. Circuit agreed with NRDC – held that EPA’s interpretation of “stationary source”
violated the purpose of the act and invalidated regulations
5. Courts should defer to formal agency interpretations of law if they meet a two-part test
a. Step 1 → statutory interpretation
i. Has Congress spoken directly on the question at issue?
1. Yes → interpret statute accordingly
2. No → step 2
b. Step 2 → similar to AC review from State Farm
i. If the statute is silent or ambiguous, is the agency interpretation reasonable?
1. Yes → courts should defer to that interpretation
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2. No → courts should only come to this conclusion if the interpretation is A/C or
contrary to statute
c. In this case, text ambiguous and EPA’s interpretation balanced the conflicting goals → court
should defer
6. Reasons for deference
a. Expertise – especially important in highly technical industries. Agencies have a full
understanding of the force of the statutory policy in the given situation
b. Political accountability – judges aren’t fit to make highly technical decisions and have no part in
either political branch of the government
c. Congressional intent – if Congress explicitly leaves gaps for agencies to fill, there is a delegation
of authority to the agency
i. Can be implicit or explicit
MCI Telecommunications Corp. v. American Telephone & Telegraph Co.
512 U.S. 218 (1994)
Facts
1. Congress required any telephone carrier to file its rates with the FCC and make them publicly available.
FCC reviews the rates for their appropriateness
2. MCI tries to enter the telephone business to compete with AT&T, FCC tries to exempt them from
abiding by the filing requirement – it is expensive and makes it more difficult for small companies to
enter the market to compete with AT&T
3. AT&T sues, arguing that the agency ruling was contrary to statute
Text
1. 203(a) → “every common carrier… shall file with the commission”
2. 203(b)
a. (1) → “no change shall be made in the charges… which have been so filed and published except
after 120 days’ notice to the Commission and to the public”
b. (2) → “the Commission may, in its discretion and for good cause shown, modify any
requirement made by or under the authority of this section… except that the Commission may
not require the notice period specified in (1) to be more than 120 days”
Issue
1. Is there enough ambiguity in the statute to allow Chevron deference?
a. Step 1 → statutory interpretation
b. Step 2 → if ambiguous, is agency interpretation reasonable?
Holding/Order
1. No, affirmed.
Reasoning
1. Petitioner → gives FCC authority to make basic and fundamental changes in the scheme created by that
section
a. Cites a dictionary from 1981 – the Act became law in 1934
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2. This court → disagrees – the root “mod-“ has a connotation of limitation, every dictionary but the one
that the petitioner cited has “modify” as a minor change
a. When the word modify has come to mean both major and minor change, it will just mean “to
change” and some adverb will need to be attached
b. One whack dictionary definition doesn’t create ambiguity
c. Surrounding provisions establish that “modify” means a minor change
i. Exception in modification provision → agency could not increase the notice requirement
beyond 120 days
ii. Weird that Congress would limit the agency’s authority to modify the length of the notice
requirement but would allow the agency to make sweeping changes like the one in
question
d. FCC’s rule is wrong whatever “minor” means – effectively suspended the statutory obligations
of 40% of carriers, when Congress contemplated 100% compliance (“every common carrier
shall file”)
i. “whole new regime of regulation”
Stevens Dissent
3. Ambiguity is enough for Chevron deference
4. Textual argument → text of statute grants FCC authority to modify any requirement
a. 203(c) → ignored by the majority, contemplates that some carriers might be wholly exempted
from the rate-filing requirement
b. EX argument → Act provides one exception to FCC’s modification powers – that it can’t make
the notice requirement harsher. Can’t infer other exceptions that loosen requirements
5. Purpose argument
a. When 203 is viewed as a part of a statute whose aim is to constrain monopoly power, the FCC’s
decision to exempt small carriers is rational and measured
FDA v. Brown & Williamson Tobacco Corp.
329 U.S. 120 (2000)
Facts
1. FDCA gives FDA jurisdiction to regulate products that fit within its statutory categories – drugs,
devices, supplements, cosmetics, etc.
2. FDCA did not give FDA explicit authority to regulate tobacco, FDA claimed jurisdiction by interpreting
its “drug,” “device,” and “combination product” regulations to include tobacco
3. FDA promulgated regulations to reduce tobacco consumption among children and adolescents (see CB
771)
a. FDA → nicotine is a drug, tobacco products are delivery devices
Text
1. Drug → articles intended to affect the structure or any function of the body
2. Device → any instrument… intended to affect the structure or any function of the body
3. Combination product → combination of a drug, device, or biological product; a “drug delivery device”
is a combination product
Issue
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1. Did FDA have the authority to regulate tobacco?
Holding/Order
1. No, affirmed
Reasoning
1. Inconsistency between FDA’s purpose and tobacco regulation
a. FDA is supposed to ensure drugs are safe and effective – cigarettes can never be made safe and
effective, so FDA would have to ban them if they were included
b. Ban would be at odds with tobacco regulation since 1965 that expressly show that sale of
tobacco is to be continued
i. Congress considered and rejected bills that would have given FDA jurisdiction
ii. Congress has an “explicit scheme” for regulating tobacco and public health that precludes
any FDA involvement
2. Whole code → where Congress spoke elsewhere about tobacco regulation, its laws were comprehensive
a. Agencies can change their minds, statutes are interpreted at the time they were passed
b. United States Code → marketing of tobacco constitutes one of the greatest basic industries of the
United States
c. Congress intended to exclude tobacco from FDA jurisdiction
3. FDA’s action is too broad
a. Step -1 → agency interprets its authority in a novel way that would have profound and
unexpected consequences → not owed deference
4. Supervision of product labeling is part of the FDA’s job, but FCLAA and CSTHEA expressly prohibit
any federal agency from imposing health-related labeling requirements on cigarettes or smokeless
tobacco
Breyer Dissent
1. Textual argument
a. Tobacco products fit within the statutory language – basically accepts the arguments that the
majority rejects
2. Purpose argument
a. FDCA’s purpose is to protect public health – cigarettes should be included within its scope
b. Unregulated tobacco causes lots of deaths
c. FDA drafted the FDCA’s new language, testified in front of Congress
3. Legislative history
a. Majority interprets FDA’s former denials of its jurisdiction alongside the legislative history of
Congress’s agenda to regulate tobacco itself
b. Agencies can change their minds
i. FDA obtained evidence to prove that the intent was there despite specific claims being
absent
ii. Scientific evidence of adverse health effects mounted in the late 1980’s
iii. Administration policy changed – Commissioners of this FDA simply took a different
regulatory attitude
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4. Upshot
a. Majority holds that a regulatory statute aimed at unsafe drugs and devices does not authorize the
regulation of a drug (nicotine) and a device (cigarettes/smokeless tobacco) that the Court itself
finds unsafe – majority’s conclusion is counterintuitive
Chevron Step Zero
United States v. Mead Corp
533 U.S. 218 (2001)
Facts
1. Mead believes its products are getting taxed at a higher rate than required by statute
2. “diaries, notebooks, and address books, bound; memorandum pads, letter pads, and similar articles” →
4% tariff
a. NS → are day planners “diaries” when grouped with notebooks and address books? Probably.
b. Last antecedent → does “bound” apply to the whole list? Probably.
c. Plain meaning → does “bound” include metal or plastic binding, or just book binding? Unclear.
d. EJ → are day planners “similar articles” when listed after “memorandum pads and letter pads?”
Probably not.
3. “other items” → duty free
4. Agency interpretation → “diaries… bound” subject to 4%. Agency establishes this through a ruling
letter
a. Ruling letters are issues routinely by individual customs officers, involve little reasoning and
oversight
Issue
1. Are ruling letters entitled to Chevron, or any other deference?
Holding/Order
1. Ruling letters are entitled to Skidmore deference, reversed and remanded
Reasoning
1. Step zero → agency is eligible 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 authority
a. NCRM + formal adjudication always pass step zero – ruling letter does not
b. Ruling letters are best treated like “interpretations constrained in policy statements, agency
manuals, and enforcement guidelines”
2. Ruling letters are not entitled to Chevron
a. Statute doesn’t indicate that Congress wanted these rulings to have force of law
b. Not binding – not created with “lawmaking pretense in mind”
3. Ruling letters are entitled to Skidmore deference
a. Under Skidmore, agency only entitled to deference if it persuades the court that its interpretation
is correct
b. Customs officers have specialized experience → ruling letters may be persuasive on a case-bycase basis
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Scalia dissent
1. Ruling letters are entitled to Chevron – Scalia would defer to agency interpretation
a. Majority’s test is unclear and will be difficult for lower courts to apply – Skidmore deference is
vague and uncertain in its
b. Will push agencies to act via NCRM to ensure they get Chevron deference, even though Chenery
II highlighted the importance of agency flexibility in choosing how to act
2. If agency interprets an ambiguous statute via informal adjudication → won’t get deference and court
will decide
a. Agency can’t update unless another lawsuit comes up
3. Accuses majority of shifting resolving ambiguity in statutes that give agencies responsibility from
agencies themselves to judges
Barnhart v. Walton
535 U.S. 212 (2002)
Facts
1. Walton’s mental illness prevented him from engaging in any “significant work” for 11 months, statute
demanded an “inability to engage in any substantial gainful activity” lasting 12 months for benefits –
Walton didn’t get them, sued
Text
1. “inability to engage in any substantial gainful activity by reason of any medically determinable physical
and mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months”
a. Two conditions must be met
i. Inability to work (1)
ii. Physical or mental impairment (2)
b. Agency interpretation
i. “which has lasted for… 12 months” applies to “inability,” not just “impairment”
ii. A person might be disabled for over a year, but only unable to work for a few months →
not eligible for benefits
iii. “expected to last” only applies when the “inability” has not yet lasted 12 months
1. At 9 months, inability expected to last for at least 3 more months → eligible
2. At 9 months, applicant is back at work → not eligible
Issue
1. Does “which has lasted… for 12 months” apply to just (2) or both (1) and (2)?
a. Circuit held that agency interpretation was unlawful and struck it down
2. Does the statute unambiguously forbid the agency interpretation?
3. If not, does the interpretation exceed permissible bounds for any other reason?
Holding/Order
1. Guidance passed step zero, entitled to Chevron – reversed and remanded
Reasoning
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1. Agency’s interpretation is long-standing – the fact that the agency previously reached its interpretation
through means less formal than NCRM does not automatically deprive that interpretation of the judicial
deference otherwise its due
2. Chevron provides the appropriate lens through which to view the legality of Agency interpretation
a. Expertise of agency
b. Importance of question in administration of the statute
c. Complexity of administration
d. Consideration given by the agency
3. Barnhart matters for the gap between Chevron and Skidmore deference, where the agency’s
interpretation is not the best but is consistent with statute and reasonable
a. Inconsistent with statute → agency loses under both
b. Consistent with statute but not a good interpretation → agency may win under Barnhart ???
c. Consistent with statute and best interpretation → agency wins under both
Gonzales v. Oregon
546 U.S. 243
Facts
1. Oregon was the first state to legalize assisted suicide when the Oregon Death with Dignity Act
(ODWDA) was passed by ballot measure
a. Exempts physicians from civil or criminal liability when they dispense or prescribe a lethal dose
of drugs on request of a terminally ill patient
2. Drugs that doctors prescribe under ODWDA are Schedule II under the Controlled Substances Act (CSA)
a. Schedule II substances are generally only available with a prescription
b. 1971 regulation promulgated by the AG requires that every prescription for a controlled
substance “be issued for a legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice”
3. AG issues an interpretive rule in 2001 → using controlled substances to assist suicide is not a
“legitimate medical practice” and that dispensing or prescribing them for this purpose is unlawful under
CSA
a. District court issued an injunction against the rule’s enforcement, government appeals
Issue
1. Does the CSA give the AG authority to issue an interpretive rule outlawing conduct that ODWDA
permits?
2. Is the AG’s interpretive rule entitled to Chevron, Skidmore, or any deference?
Holding/Order
1. No
2. AG’s interpretive rule is entitled to Skidmore deference
Reasoning
1. CSA was enacted with the main objectives of combating drug abuse and controlling the legitimate and
illegitimate trafficking of controlled substances
2. CSA permits the AG to “add, remove, or reschedule substances. He may do so, however, only after
making particular findings, and on scientific and medical matters he is required to accept the findings…
these proceedings must be on the record after an opportunity for comment”
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3. To issue prescriptions of Schedule II drugs, doctors have to get a registration issued by the AG
a. AG may deny, suspend, or revoke the registration if the physician’s registration is “inconsistent
with public interest” after considering 5 things:
i. Recommendation of State licensing board
ii. Applicant’s experience in dispensing controlled substances
iii. Applicant’s conviction record relating to controlled substances
iv. Compliance with laws relating to controlled substances
v. Other conduct which may threaten the public health and safety
4. In 1997, members of congress concerned about ODWDA invited the DEA to prosecute or revoke the
CSA registration of Oregon physicians who assist in suicide because hastening a patient’s death is not
legitimate medical practice
a. DEA → not authorized by the CSA to displace the states as primary regulators of the medical
profession or to override a state’s determination as to what constitutes legitimate medical
practice
5. AG’s interpretive rule is not entitled to Chevron deference
a. “legitimate medical purpose” is ambiguous – but this isn’t enough to warrant Chevron deference
because the rule has to be promulgated in line with the authority that Congress has given to the
agency
6. The CSA does not grant the AG broad authority to promulgate rules
a. AG can promulgate rules relating only to “registration” and “control” and “for the efficient
execution of his functions” under the statute
b. The interpretive rule under consideration does not concern the scheduling of substances and was
not issued after the required procedures for rules regarding scheduling → does not fall under the
AG’s “control” authority
c. If you give AG broad, general authority → negates carefully described limits on AG’s authority
over registration and scheduling
7. The interpretive rule cannot be justified under public health interests
a. AG did not undertake the 5-factor test in (3)
Chevron Step 0.5 and -1
Encino Motorcars, LLC v. Navarro – Chevron Step 0.5
136 S. Ct. 2117 (2016)
Facts
• FLSA requires employers to pay overtime to employees who work >40 hours in a week
o 1966 → Congress exempts “any salesman, partsman, or mechanic primarily engaged in selling or
servicing automobiles”
i. Authorized Department of Labor to promulgate rules, regulations, and orders
o 1970 → DOL issues regulation that defines “salesman” to mean “an employee who is employed
for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for
sale of the vehicles… which the establishment is primarily engaged in selling”
i. Excludes service advisors → several courts reject DOL’s conclusion
o 1978 → DOL issues opinion letter departing from its previous position and states that service
advisors could be exempt
o 1987 → DOL confirms new interpretation, including service advisors in the exemption
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•
Text
•
o 2011 → DOL issues a final rule that followed the original 1970 regulation that interpreted
“salesman” to mean only employees who sell vehicles with little explanation
Auto dealership service advisors sue DOL, alleging that they violated FLSA by failing to pay overtime
o DOL moves to dismiss, district court grants
o 9th circuit → gives Chevron deference to agency
“any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” is exempt
from overtime requirements
o NS → are service advisors salespeople?
Issue
• Does the exemption include service advisors?
• Did the agency act A&C when it issued the 2011 rule?
• Did the agency’s interpretation deserve Chevron deference?
Holding/Order
• Probably.
• Yes.
• No.
Reasoning
• When a rule is procedurally defective, the agency acted A&C by failing to give adequate reasons for its
decisions – State Farm, not eligible for Chevron deference
• 2011 rule was issued without reasoned explanation – the explanation that was given fell short of the
agency’s duty to explain why it deemed it necessary to overrule its previous position
• Requiring dealerships to adapt to the agency’s new position would significantly change compensation
arrangements that have been structured this way since the 1970’s
o Dealerships that don’t comply with agency could face FLSA liability – would be hard to defend
against retroactive liability by showing it relied on agency’s prior position in good faith
o Agency noted in its decision that the automobile sales industry had relied on its prior
interpretation
• “Good reasons for the new policy”
o Statute does not include such positions and the Department recognizes that there are
circumstances under which the requirements for the exemption would not be met
o Though an agency may justify its policy choice by explaining why that policy is consistent with
statute, the Department did not analyze or explain why the statute should be interpreted to
exempt dealership employees who sell vehicles but not dealership employees who sell services
Ginsburg/Sotomayor Concurrence
• If agency departs from prior position → no “heightened” standard of A&C
• Unexplained inconsistency in agency policy is a reason for holding an interpretation to be an A&C
change from agency practice
King v. Burwell – Facts, Chevron Step -1
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•
•
•
•
•
•
ACA adopts three reforms
o Pre-existing conditions → bans insurers from price and coverage discrimination
o Mandate → requires everyone to buy insurance or pay a penalty
o Subsidies → provides Medicaid below 100% FPL and subsidies between 100-400% FPL
▪ Refundable tax credits to individuals with household incomes between 100-400% of
federal poverty line
If one reform fails, the whole thing collapses – insurers can only keep prices down if their insurance
pool is composed of unhealthy and healthy individuals.
Ending discrimination floods the pool with unhealthy individuals that were previous excluded.
Mandate ensures that healthy individuals would also enter the market to balance them out.
Subsidies “ensured” that everyone required to buy a plan could afford one
States have the right of first refusal – if the state doesn’t set up an exchange, federal government’s
exchange will be available to that state’s residents
o 18031 → “each state shall establish an American Health Benefit Exchange for the State”
o 18041 → for states who do not establish their own, HHS “shall establish and operate such
exchange within the state”
o 34B → tax credits “shall be allowed” for any “applicable taxpayer.”
▪ Amount of credit depends on whether taxpayer has enrolled through an exchange
established by the state (18031)
o “Exchange” is defined as “American Health Benefit Exchange established under 18031”
▪ Scrivener’s error! Denying subsidies for people in 34 states is that only unhealthy in
people in those states would buy plans, causing the “death spiral”
o IRS → “exchange established by the state under 18031” to include both federal and state
exchanges – meets step zero, Congress delegated RM authority to IRS and IRS acted accordingly
King v. Burwell – SCOTUS, Chevron Step -1
135 S. Ct. 2480 (2015)
Facts
•
•
Issue
•
•
Text
•
•
Exchange – marketplace that allows people to compare and purchase insurance plans
ACA based off of Massachusetts system
Do the interlocking reforms apply equally in each state no matter who establishes the state’s exchange?
Are the ACA tax credits available in states that have a federal exchange?
“tax credits shall be allowed for any applicable taxpayer”
Amount of tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through
“an Exchange established by the State under 1311”
o IRS → promulgated a rule that made tax credits available to both State and Federal exchanges –
16 states + DC have their own, 34 states let HHS do it
Holding/Order
• No Chevron deference – fails step -1, questions of deep economic and political significance may not get
deference
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Reasoning
• “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has
intended an implicit delegation”
o Premised on an approach that assumes ambiguity constitutes an implicit delegation from
Congress to “fill in the gaps”
• Tax credits involve billions of dollars in spending and affect health insurance prices for millions of
people. Whether those credits are available on Federal Exchanges is a question of “deep economic and
political significance” → had Congress wished to delegate this issue to the agency, it would have
done so expressly
• “each State shall… establish an American Health Benefit Exchange… for the State” → if the state
chooses not to do so, HHS “shall… establish and operate such Exchange within the state”
o Flexible choice framed as a requirement
o “such Exchange” instructs HHS to establish and operate the same Exchange that the State was
directed to establish
o ACA defines “state” to mean the 50 states and DC, does not include the Federal Government –
but when read in context, meaning is unclear
• Exchanges “shall make available qualified health plans to qualified individuals”
o “qualified individual” → individual who resides in that state that established the exchange
o Problem! → if you give “the state that established the exchange” its natural meaning (50 states +
DC) → no qualified individuals in Federal Exchanges
• Exchange means “an American Health Benefit Exchange established under section 18031”
o Suggests that Section 18041 authorizes HHS to establish an exchange under 18031, not 18041
o Ambiguous – several provisions that assume tax credits will be available on both State and
Federal Exchanges
• Petitioners and dissent respond that the words “established by the State” would be unnecessary if
Congress meant to extend tax credits to both State and Federal Exchanges
o Surplusage is not an absolute rule
o Read in context with the rest of the act – reject petitioners/dissent because it would destabilize
the individual insurance market in any state with a Federal Exchange
o Expressly addressed what would happen if a State did refuse the deal
o Structure of 36B itself suggests that tax credits are not limited to State Exchanges
• Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the
definition of “applicable taxpayer”
• Context and structure of the ACA compels SCOTUS to depart from plain meaning
• Congress passed the ACA to improve health insurance markets, not to destroy them
Scalia Dissent
• Tax credits were supposed to be limited – illogical that an Exchange that is not established by a State
qualifies as being “established by the state”
o Purpose of including “by the state” was to limit credits to state exchanges
• Context is a tool for understanding the law, not rewriting it
• Two ways to establish an exchange
o State
o HHS
Designating both as “established by the State” takes away the operative meaning of the phrase
throughout the entire ACA, not just 36B
• Lawmakers repeat themselves for multiple reasons, but they don’t throw in terms that have no meaning
at all
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•
•
•
Courts can’t fix bad legislation, Congressional purpose/intent are impossible to decipher
“Normal rules of interpretation always seem to yield to the overriding principle of the present Court: the
ACA must be saved.”
Accuses majority of favoring some laws over others, is prepared to do whatever it takes to uphold and
assist its favorites
King v. Burwell – 4th Circuit, Chevron Step -1
759 F.3d 358 (4th Cir. 2014)
Holding/Order
• Gives Chevron deference
Reasoning
• Step 1: ambiguity
o Context → “such exchange” refers to a state exchange, requiring HHS to create a “state”
exchange if the state doesn’t do it itself.
▪ HHS steps in the shoes of the state, effectively running a state exchange
o Whole act absurdity → qualified individual is defined as a person who “resides in the state that
established the exchange.” Without the IRS’s interpretation (includes federal and state
exchanges), the federal exchange would have no qualified individuals to buy insurance on it
o Legislative history can’t solve ambiguity
• Step 2: reasonable
o Furthered the purpose of the ACA, not A&C
o Avoids two unintended bad outcomes:
▪ People can’t afford plans they are required to buy
▪ People would be charged a penalty for failing to buy something they couldn’t afford
• Plaintiffs → plain meaning of “coverage months” and “premium assistance amount” by reference to
“established by the State” limits tax credits to state exchanges
o Language says what it says, Congress would have included Federal Exchanges if it meant to
o Federal and State Exchanges are referred to separately in different sections
o 4th Cir. → Credit amount for those purchasing through Federal Exchanges would always be zero
• Defendant → “such Exchange” refers to a state Exchange set up and operated by HHS – statute
mandates existence of state Exchanges, but directs HHS to establish such Exchanges when states fail to
do so
o Unless their reading of this section [state and federal exchanges included] is adopted, there
would be no “qualified individuals” in the 34 states with Federal Exchanges
• 4th Cir. → not convinced by either side, legislative intent too hard to discern
o Tax credits being available to everyone only makes sense – why punish people for being unable
to buy a mandatory plan they were too poor to afford in the first place?
▪ Possible that statements were made under the assumption that every state would establish
its own Exchange – Congress did not expect states to turn down federal funds and fail to
create/run their own exchanges
o Statute is ambiguous and subject to at least two different interpretations – passes Chevron
Step 1
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•
No question that ACA was intended as a major overhaul to health insurance – clear that widely available
tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their
importance when drafting the bill
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