Cases

Statutes/Constitution
Regulations
Policy
1. Introduction to Modern Government
a. Article 1-Congress
i.
Power to lay and collect taxes, provide for common defense and general
welfare
ii.
Regulate commerce with foreign nations
iii.
Make laws that are necessary and proper for carrying into execution the
foregoing Powers
b. Article 2-President
i.
Commander in Chief of Military
ii.
Advice and Consent make treaties with of Senate, can nominate with
advice from Senate (Ambassadors, S. Ct. justices, other officers) Congress can veto
iii.
Section 1- Vesting Clause Executive power shall be vested in the
president of the U.S.
iv.
Section 3-Take Care Clause Shall take care that the laws be faithfully
executed
c. Article 3-Judicial Branch
i.
S. Ct., Congress can create lower courts
ii.
All Constitutional cases, cases where U.S. is a party
d. Limits of the Common Law: Tort and Contract
i.
Limitations on Common Law Adjudications in General p. 95
1. Retrospective rather than prospective
2. Reactive rather than proactive
3. Uncertainty (Especially across states!)
4. Institutional Competence
5. Political Accountability
6. Parties v. Interested Participants
7. Collective Action Problems
ii.
Problems with torts
1. Reactive
2. Inconsistent
3. Always ex post
4. Judges are generalists not specialists
iii.
Macpherson v. Buick (1916) p. 86 Inconsistent
1. Plaintiff was injured when a defective wheel on his car
fell off, defendant didnt make the wheel
a. The ultimate manufacturer is liable to
the final consumer because the manufacturer was in the best position to inspect
the car before it was sold
2. Problems with privity rule
a. Inefficient
i.
Creates more cases
b. No incentive for mfr. to create good
products
i.
Cant be sued by
consumers in tort or contract
ii.
Developed for small
towns where social pressure kept businesses accountable
c. Dealer has no duty to inspect
3. Privity rule was antiquated
a. Macpherson changed this rule.
iv.
Rotsche v. Buick (1934) pg. 90 Common law is unpredictable
1. Plaintiff had an accident. Mechanic who inspected the
car said pieces were missing, but factory records approved the car
a. Buick provided evidence of extensive

inspections the car underwent prior to leaving the factory

b. Court decided it was the plaintiffs
burden to show that the car had been negligently manufactured. (Mechs
inspection also unreliable)
2. Mfg doesnt like the tort system because the rule is
unpredictable, company couldnt predict law and still vulnerable to false claims
v.
Problems with Contract Law
1. Latent ambiguity (Same term for 2 different itemsPeerless ships)
2. Difficult to understand
a. Having more information doesnt always
resolve all issues in contracts (Ex: Credit Card Agreements)
b. Consumers often operate with little
information, companies can overcharge because competitors do
3. Modern contracts (no negotiating w/ large corp)
4. Small damages (limited in ability to sue)
e. Economic Justifications for Regulation
i.
Economic theory-We dont want waste
1. Notion of market failures, common law will not supply
consumers with the preferred market
a. Monopoly Power
b. Economic rent (Controls a source of
supply that is cheaper than the current market price)
i.
Not necessarily
wasteful, rents are good things
ii.
Want to regulate to
promote fairness
c. Externalities
i.
Regulate to avoid
waste, public goods often suffer from hard to control externalities
ii.
Democratic theory
1. Reflects the idea of social justice or welfare-sometimes
people will demand more from society than any individual will seek for themselves as
consumer
iii.
Scarcity
1. Deliberate decision to abandon the market
a. Regulation can help alleviate shortages.
iv.
Paternalism
1. Govt may know whats better for society than
individuals.
v.
Irreversibility
1. Endangered species/fishing products
vi.
Unequal bargaining power
1. Distributive justice concerns
vii.
Information problems
1. Misleading advertisement
viii.
Moral Hazard
1. Moral hazard is an extreme externality
a. When someone other than the buyer
pays for his purchase.
i.
E.g. medical costs
(when paid for by govt) (Obamacare?)
1. The
fact that other people pay may lead to overconsumption.
ix.
Public goods
1. Two criteria:
a. Nonrivalrous consumption Consumption of one good does not take it away from another (Public Park)

f.

b. Nonexcludability- Costs of excluding

non-paying beneficiaries who consume the good are no high that no private profit
maximizing firm is willing to supply the good (National Security)
2. We need regulation for these b/c the market wont take
them on!
a. Free-riding, etc.
x.
Spillover argument
1. Spillover costs (externalities) difference between true
social costs and unregulated price
a. Government reduces these costs by
regulations
2. Arguments against spillover rationale
a. Bargaining is not costless-transaction
costs
b. Intervention-changes the distribution of
wealth
xi.
Elizabeth Warren, Unsafe at Any Rate
1. Proposal for the formation of a Financial Product Safety
Commission
a. New agency for the protection of
consumers against abusive practices by financial industry.
Social Justifications for Regulations
i.
Personal choices dont fulfill actual needs
1. Citizens preferences may be better realized in their
political choices rather than their economic choices
a. People may be altruistic, use politics to
realize meta-preferences or to pursue the general interest
2. Sunstein - 4 phenomena explaining differences
between market behavior and political behavior:
a. Citizens may seek to fulfill individual
and collective aspirations using politics, but only worry about themselves in the
market.
b. As political actors, people may try to be
more altruistic than in the market.
c. Political decisions may vindicate
second-order wishes
i.
Normative belief about
a belief
1. e.g. I
have a desire to procrastinate, but I wish that desire would go
away.
a.
T
houghts about what is best for society.
i.
W
e may try to fulfill second-order wishes
through the law.
d. People may precommit themselves,
using a regulation, to a course of action they think is in the general interest.
i.
Ulysses and the
Sirens is the model here.
ii.
Paternalism
1. Ex: People wont create diversity in workplace so you
need regulation (Social Subordination)
iii.
Fix irreversibility
1. Ex: Endangered species and fishing cap

iv.

Moral
1. Individual people dont have the ability to pay for

safety less resources

2. Agencies
a. Basics
i.
Usually created by statute, can be by executive order and derive power
from the statute or order which created them
ii.
Have the ability to act with the force of law by issuing rules or
regulations
b. Agency Pros
i.
More efficient than Congress
ii.
Expertise
iii.
Responsive to many interests
iv.
Coordinate better than Congress
v.
Politically accountable through the President
c. Two types of agencies
i.
Executive agencies
1. Within the executive branch and are run by political
appointees who serve at the pleasure of the President
ii.
Independent agencies
1. Run by officials who cannot be fired at will by the
President, but can be for good cause
a. President does appoint their heads and
can help them politically
d. Two types of people in agencies
i.
Appointees
1. Confirmed by president, some require Senate approval
2. Highest rungs of leadership and management
3. Appointed by who and what you know
a. People who worked on campaigns
b. Donors
c. Etc.
4. Senate confirmation hearings are more strategic
a. Just trying to put pressure on a guy you
dont like to shift public opinion.
5. Appointees can change the frame in which they show
the goal of the organization
a. But this may (see: will) raise red flags in
the future.
ii.
Civil Servants
1. Hired through a non-political process
2. Outnumber appointees and outlast them too (only
dismissed for cause)
3. Pros
a. Nonpartisan
i.
Objective, non-biased
b. Experts
c. Consistency
i.
Not as much turnover
ii.
E.g. Obama gets rid of
all Bushs people and puts in all of his.
1. Also,
political appointees may just leave.
4. Cons
a. Inefficient
i.
Job security
b. May cut off the agency from political
officials.
i.
No Political

accountability (this is a buzzphrase)

c. Could work to undermine what the
political appointee wants to do
i.
Leak to press
ii.
Stall until the appointee
is gone
iii.
This is why it matters
what civil servants think!
iii.
Agencies and the Constitution
1. Constitution doesnt mention, but clear that Founders
intended for President to have subordinates run the executive
a. Article II- appointment power
2. Combo of Necessary and Proper Clause, Commerce
Clause, and the authority to provide for a defense imply Congress can create agencies
3. Agencies governed by APA (Constitution of Agencies)
iv.
Myers v. United States (1926) Prez unrestricted in removing purely
executive
1. President unilaterally removes a postmaster, brings suit
arguing needs Senate consent
2. President has unrestricted authority to remove purely
executive officers (without approval of Congress)
3. Congress only has power to consent
a. He cant enforce laws alone but still
needs control over them
4. Power comes from Art. II
a. Take care clause and appointment
clause
5. Arguments
a. Functionalist: Prez in better position to
control, monitor & manage
b. Structuralist: Power belongs in
executive branch
c. Formalist: Powers enumerated in text
of Constitution
i.
Art. I 1, Art II 2
d. Textualist: take care that the laws be
faithfully executed
6. Dissent (Holmes)
a. Congress could abolish the position
altogether if it wanted to, so why cant it weigh in on the firing of an officer?
7. Perkins rule--Congress may limit the removal power over
executive officers
a. Removal power must remain with
executive
v.
Humphreys Executor v. United States (1935) Good Cause okay for
Q-L or Q-J
1. Humphrey appointed to the FTC for a seven year term,
statute creating FTC had several removal limitations
2. Upheld cause provision for Federal Trade Commission
principal officers on the ground that they are a quasi-legislative, quasi-judicial body.
a. Distinguished from Myers in that Myers
applied only to executive officers
b. Created by Congress to carry into effect
legislative policies embodied in the statute in accordance with legislative
standard and to perform other specified duties as legislative or judicial aid
i.
Making investigations
and reports in aid of legislative power-acts as legislative agency

ii.
Commission can act as
master in chancery under rules prescribed in court-acts as judicial
vi.
Morrison v. Olson (1988) Good cause okay for inferior officers
1. Attorney General was required to investigate high-level
government officials
a. If he found reasonable reason to
proceed, he had to ask a special court to appoint an independent prosecutor who
could only be removed for good cause
2. Was the independent prosecutor a principal or inferior
officer?
a. Principal officers can be removed at
wish of the President
b. Court found was an inferior officer
because the AG could remove her, had limited statutory duties, and limited
jx
3. Did the good cause requirement violate separation of
powers?
a. No b/c it did not expand the power of
courts or Congress
i.
Executive still had the
power to initiate prosecutions and
ii.
While IC was ensuring
that the laws are faithfully executed (so executive)
1. Prez
had some influence over special counsel b/c AG still accountable
a.
P
rez can do his duty via AG.
4. 4 factors for inferior officers
a. Subordinate to Principal
b. Certain, limited duties
c. Limited in jurisdiction
d. Limited in tenure
5. Unlike Myers b/c there is no attempt by Congress to
gain a role in removal of executive officials.
a. Here, president still has some power, so
its all good.
i.
Scalia Dissent- this is
bullshit!
1. In
Humphreys Executor, good cause was a constraint on
president, here it grants power to him
2. Should
nt be any executive branch members who arent accountable to
the president
vii.
Two tests
1. Humphreys
a. Is the official quasi-legislative or quasijudicial?
i.
If yes, Congress can
limit the conditions of removal.
ii.
If purely executive,
Congress cannot.
2. Morrison
a. If the removal restrictions impede the
presidents ability to perform his constitutional duty, and the functions of the
officials in question must be analyzed in that light, then the removal restrictions

are unconstitutional.
b. Any removal restriction depriving the
President of any executive power is unconstitutional.
3. Legislation
a. The Legislative and the Drafting of Laws
i.
Initiate bill in three ways:
1. Introduce own bill
2. Incorporate bill in other legislation
3. Add idea as an amendment to other legislation
4. Bills can be drafted by anyone.
a. Member of committee, staff, lobbyist,
executive branch (must be introduced by a member of Congress)
i.
Legislative history starts
here (press release, one pager, posts)
ii.
After introduced, sent to committee
1. Factors in determining which committee:
a. Views of members
b. Expertise
c. Fullness of docket
d. Who is the chair?
i.
This person will lead the
discussion.
e. You want to be on the committee!
i.
People will draft bills in
a way to influence parliamentarians.
2. Most bills die in committee
a. Chair can obstruct
b. Committee can recommend it to not
pass
c. Inaction
3. House can file a Discharge petition
a. Forces a bill out of committee to the
floor for consideration
i.
If over half of the House
votes, it goes out of committee.
1. This is
how you can go over the Chairs head to get a bill out of
committee.
4. Legislative History
a. Committee reports, hearing testimony,
markups
5. Committees are good because:
a. Expertise
b. Filter out waste of time bills
c. Oversight hearings
i.
Investigative scandals
d. Legislative hearings
6. What happens in a committee?
a. Hold a hearing
i.
Talk about pros/cons
ii.
End up with recorded
hearing testimony
b. Then we get markups
c. Then a committee report
i.
Written by staff.
1. Why
dont congressmen write bills themselves?
a.
T

heyre BUSY
i.
T
rying to get reelected
ii.
F
UNDRAISING.
b.
T
hey probably didnt even read the bill.
i.
T
hese things are long.
If it gets out of committee, goes to the floor
1. Bill is put on one of four floor calendars
a. Bills can be brought up at anytime
b. Minor legislation can be brought up by
unanimous consent or a motion to suspend the rules
c. Major legislation is sent to the rules
committee
i.
Determines how and
what procedures will be used for debate
1. Limits
on amendments
2. Order
of voting on amendments
2. After being scheduled, bill goes to floor debate
a. Can be debated in Committee of the
Whole
b. To proceed, a voice, standing division,
or recorded vote is held
i.
Voice Vote
1. Everyo
ne yells out yea or nay and presiding officer decides.
iii.

a.
I
NEFFICIENT
i.
A
nd usually rigged!
ii.

Standing Division

Vote
1. Everyo
ne stands for yes or no and they are counted.
iii.
Recorded Vote
1. House
has electronic version
2. Senate
just does roll call vote.
c. Debate must be brief and germane
d. Any speeches, filibusters will go in the
record.
i.

Can also insert things

into the record.

1. Even
speeches you never gave!
ii.

Colloquy

1. Orchest
rated conversation btwn two people
a.
A
meticulously orchestrated dance intended to create a
shared meaning.
3. First, the House
a. Begin by deciding the Rules (VETO
GATE)
i.

Essentially a law for

how to pass a law.

1. e.g.
Limits on amendments.
ii.

What kinds of things are

going to happen.
b. Committee of the Whole will decide
c. Also could make it in by unanimous
consent (VETO GATE - Only need one!)
i.
OR a motion to suspend
the rules (HUGE VETO GATE - need to pass)
1. Debate
limited to 40 minutes, no amendments and need a majority
4. Then, the Senate
a. Motion to proceed
i.
But can filibuster (VETO
GATE)!
1. Need
to get cloture.
2. Can
filibuster bills, but NOT appointments.
a.
I
f you could filibuster appointments, spots in government
would just stay unfilled!
i.
A
nd the cost of allowing an appointment (worstcase scenario) is much less than bills.
3. Can
filibuster at different points in the process
a.
W
hy would you?
i.
T
o eat up time!
4. Talking
filibuster - Actually talking
5. Regula
r filibuster - Just threatening to do it.
6. Pros
a.
P
rotects the minority
7. Cons
a.
J

ust a waste of resources.

i.
G
ums up the whole process.
8. Wouldn
t requiring a talking filibuster (maybe even public) solve the
problem?
a.
M
aybe, but both parties like the filibuster
i.
I
iv.
House and Senate

t protects whoever is in the minority at the time.

If bill passes through both houses, we must resolve differences between
1. Conference: reconciliation
a. Accept only one version
i.
Must eventually agree
on an identical bill.
1. Agree
on amendments
a.
G
et finally approved by both
b. Eventually we get a conference report

(VETO GATE & LH)

i.
But houses dont
necessarily have to vote for it.
2. Amendment in Nature of a Substitute
a. Replacing entire text of a bill w/ a new
entire text.
i.
Still called an
amendment.
v.
President can veto, sign, or pocket veto
1. Pocket veto
a. If close enough to the end of the
session, POTUS can just do nothing and the session will end.
i.
Normally, If President
ignores bill, becomes law after ten days
2. Congress can overturn veto by vote
3. Prez can write a signing statement explaining why he
is signing, what he does and doesnt like (Leg. Hist)
b. Strategies to avoid veto gates and get bills passed:
i.
Get strong support
1. Powerful co-sponsors
2. DIVERSE
a. Bi-partisan
ii.
Get outside support
1. Put pressure on the other side!
iii.
Tack your bill onto another bill
1. Ideally one with a high probability of getting passed
a. e.g. military funding
i.
Christmas Tree Bills
1. Everyo
ne can hang their ornament on it.
a.
T
hese type of bills usually get a lot of bills added to them.

10

c. Why are people putting out all these bills (including ones that probably wont
pass)??
i.
Because you want your constituents to think you are doing something!
d. Theories of Legislation
i.
Public Choice Theory
1. Members of Congress only care about reelection.
a. Two paths:
i.
Public interest groups
1. Statute
s reflect self-interest of interest groups that lobby to Congress
ii.
Constituent support
ii.
Social Choice Theory (Problem of Cycling) p. 136
1. Ranked voting, depends on rational actor (As does
Public Choice Theory)
iii.
Positive Political Theory
1. Game theory, tries to ensure legislation reflects its own
preferences but takes into account the preferences of all those involved in the process
a. Median legislation, etc.
e. The 1966 Motor Vehicle Safety Act
i.
Industry against state regulation
1. Patchwork approach
2. Raise costs
ii.
Industry Supports federal regulation
1. Inevitable
2. Uniformity preferable
iii.
Naders impact
1. Unsafe at any Speed
a. Public backed him
i.
Morally good thing to
do, and will get you reelected if you join!
iv.
Interpret Statutes broadly when trying to correct something
1. In this case highway safety
2. Ribcoff who lead the initiative, he had his own interests
in pushing this bill (not just to please voters) Started this idea as governor before public
outcry
v.
Secretary shall establish orders for appropriate Federal motor vehicle
safety standards
1. Minimum standard for motor vehicle safety which is to
protect the public against unreasonable risk
f. The Senate Report and Structure of Statutes
i.
Principal Operative Provisions-heart and soul What the statute is
trying to achieve
1. 103 of MVSA
ii.
Subordinate Operative Provisions- goals which are supportive of the
principal provisions or exceptions to the principal
iii.
Implementation-muscle of the statute. Enable statute to do what its
purpose is
1. 106 of MVSA
iv.
Specific repeals: 117 of MVSA
v.
Preemption provision: bars application of state law
1. 103(d): states cannot enact own standards, must be
identical to statute (can establish higher standard for equipment procured for state use)
vi.
Savings Clause- Express preservation of certain aspects of state law
vii.
Last in time rule -The most recent congressional act trumps older
legislation
viii.
Appropriations Committee - Within Congress, decides exactly how much
agencies get
ix.
Senate Report
1. Aids to the chair of the Commerce Committee wrote it

11

2. Helps courts interpret statutes

3. Issue of legitimacy because it is not voted on
g. Specificity and Delegation
i.
Reasons why Congress would delegate power to executive agencies
1. Congress is lazy/limited time
2. Not experts
3. Passing the blame
4. To avoid political bias (rationality)
5. Speed & efficiency to meet needs (agency is faster)
6. Continuity of an agency/stability in the policy
a. Agency really cares so this creates
stability.
7. Congress gridlocks unlike agency
ii.
Contextual reason for delegation
1. Article 1 allows all laws that are necessary and proper
for carrying into Execution the foregoing powers
iii.
Political Structure may affect delegation
1. Will see more delegation to independent agencies
when prez/Congress are different parties (AND VICE VERSA)
iv.
Nondelegation doctrine - Congress cannot grant its legislative power to
any other branch of government (Only enforced twice and both times against NIRA)
v.
Slippery Slope concern
1. Dont want to delegate all of Presidential powers away
vi.
POLITICAL REASONS FOR DELEGATION
1. Epstein & OHalloran Practical reasons rather
normative
a. Cg delegates because of lack of time,
energy, and expertise
b. More complicated the regulation, more
likely to regulate
c. Can avoid blame and receive credit
2. Schoenbrod Normative reasoning
a. Cg should not delegate as frequently as
it does
b. Blame-shifting delegation promotes
bad legis behavior (Cg can claim credit and avoid blame for difficult choices
made by agencies)
3. Mashaw failure to reach consensus should not stop Cg
from creating legis
a. Better to set in motion lawmaking than
to be paralyzed by specificity
b. No effect on public choice since public
does not read bill
4. Rubin delegating is not Cg losing power, but Cg
exercising power
a. Accountability not lost through
delegation to agency bc agency held accountable through exec office and Pres
5. Bressman focus on how or how well law is being
made, rather than who ought to make law
vii.
Whitman v. American Trucking (1999) intelligible principle *DC
CIRCUIT*
1. Whether the requirement that NAAQs at a level
requisite to protect the public health is an intelligible principle although neither concept
is expressly defined.
a. EPA believed its limit on pollutants was
justifiable as a suitable standard because it prevented danger to humans, a lower
standard would not be more effective

12

viii.

Whitman v. American Trucking (2001) *SUPREME COURT*

1. Whether 109(b)(1) is an unconstitutional delegation of
legislative power
a. Congress cannot delegate its legislative
power according to the Constitution, so it must lay down an intelligible principle
when it gives decision making authority to an agency
2. Intelligible principles
a. Scalia - comes from Congress
(exclusively)
b. Williams - Can come from Agencies
3. Nondelegation
a. Scalia & Silberman - Ensures that
Congress makes the important policy choices that are carried into law.
b. Williams - prevents arbitrariness,
meaningful judicial review, Congress makes policy decisions.
c. Stevens - Nature of power, rather than
the character of person exercising it .
i.
EPA wielding legislative
power [factual argument]
ii.
Similar to Myers executive b/c it relates to power of prez!
1. Possibl
y contra Murphy & Humphreys
4. Stevens - both these provisions allow delegations
a. Art. II The executive power can be
delegated
b. Art. I All legislative power
c. Easier to admit agencies have been
granted legislative power to enact regulations
5. Intelligible principle in CAA is satisfactory in light of the
other intelligible principles held constitutional. eg. regulation in the public interest
a. Cost Benefit analysis:
i.
Scalia: Costs arent part
of this
1. Text
silent on cost
a.
C
ost included in other provisions of the act
2. Expres
sly rejects ATAs interpretation of public health
3. Congre
ss doesnt hide elephants in mouseholes
6. Scalia: Clear statement rule (if ambiguous, stick to text)
a. Historically, even vague intelligible
principles have been upheld.
7. Breyer: If ambiguity, include costs for policy reasons
4. Statutory Interpretation
a. Overview of Statutory Interpretation
i.
Holy Trinity (1892) p. 225 Imported Ministers
1. Whether the act of contracting with a foreign minister to
provide services in the US was banned by an act prohibiting importation of aliens to
perform labor or service of any kind, when those services were contracted with a party
outside the US
a. Clear that church had violated the letter
of the law, but Court chooses to go beyond the literal text of the statute
i.
Must consider whole

13

legislation (Whole Act)

ii.

Context following

enactment
iii.
Absurd results will
follow from such a broad meaning otherwise.
2. When text and legislative history conflict, which controls?
a. Arguments for text
i.
Text was passed
ii.
Leg. history may not be
accurate anymore
b. Arguments for leg. hist
i.
May be mistakes in the
text that were overlooked
3. Sometimes Congress wants deliberate ambiguity.
a. So the court incentivizing Congress to
write clearer statutes may not work.
i.
AND it may go directly
against checks and balances.
b. Text-Based Tools
i.
Ordinary v. Technical Meaning
1. Nix v. Hedden (1893) p. 238 Tomatoes
a. Whether tomatoes are a vegetable or a
fruit w/in the context of the 1883 tariff act.
b. After consulting favorable dictionaries,
court relies on ordinary linguistic and culinary usage over technical definition
because law was aimed at merchants not botanists
i.
Tomato = vegetable
ii.
Assume industryspecific b/c it is a tariff statute and doesnt explicitly define.
iii.
Judges made up the
vegetable definition
c. Courts generally accept the common
meaning of a word from
i.
Common law
ii.
Who the audience is
iii.
Industry standard
iv.
Maybe not if the word is
used in a technical context
d. Common Usage is whatever the
principal usage is.
ii.
Rule of Lenity
1. Muscarello v. US (1998) pg. 242 Gat in the trunk
a. Whether the phrase carries a firearm
in a penal statute encompasses bringing firearms in a locked compartment of a
vehicle.
b. Breyer focused on the meaning of the
word carry in its strict dictionary definition
i.
Limited sense of on the
person was a rare use of the word
ii.
Also looked at
etymology and use in popular writing (looking for context)
c. Dealer w/gun in locked glove
compartment, 2 dealers w/a bag of guns in the trunk
d. Majority: Fall w/in statute b/c
i.
Dictionaries (other than
Blacks)
ii.
Bible
iii.
of surveyed press

14

reports (but what about other )

iv.

Not sufficiently

ambiguous for rule of lenity.

iii.
Code Canon p. 265

e. Dissent: falls outside the statute

i.
Rule of lenity
(ambiguity in statute resolved for defendant)
1. Breyer
requires a grievous ambiguity
ii.
Most obvious plain
meaning
iii.
newspaper report
iv.
Use in other firearms
statues (& U.S.C.)
Textual Canons of Construction-Linguistic, Whole Act, and Whole
1. Overview of Textual Canons
a. Babbitt v. Sweet Home (1995) p. 251
i.
Whether the Secretarys
interpretation of the word harm in the definition of taking to include
habitat modification and destruction under the Endangered Species Act
ii.
Supporting the
interpretation
1. Ordinar
y understanding of the word harm supports it.
a.
S
urplusage - words in a statute are construed to add
meaning, and not duplicate
i.
S
upported the indirect meaning of harm
b.
M
aj - Must harm entire species (footnote 1 p. 253)
i.
S
calia - This is bullshit.
ii.
T
hen you could freely kill individual animals!
2. Broad
purpose of the statute
a.
T
he reason Congress enacted the statute was to prohibit
the acts the Secretary was trying to prevent
i.
C
ites Hill, but Hill was about 7, this is 9!
3. Later
amendments by Congress suggest approval
a.
A
mendment relied on the habitat modification
interpretation
i.

15

L
egalizes such acts incidental to a lawful activity.
ii.
S
o Congress foresaw indirect being illegal.
iii.
Amendments are made
to have real & substantial effect (CANON OF INTERPRETATION).
iv.
Majority (Stevens) uses
congressional definition of take in 3(19)
v.
Dissent (Scalia):
1. Majority
s analysis of of legislative history predates harm addition.
2. The
word take didnt lose its original meaning just b/c it was defined
in the statute
3. Looked
at the term take everywhere in the statute and found the habitat
modification provision didnt make sense in a list of tools
forbidden for the taking of animals b/c the list didnt include
tools usually used to modify habitats (ejusdem generis)
2. Linguistic Canons
a. Grammar or syntactic, how words fit
together within a particular provision
b. Noscitur a sociis a word is known by
the company it keeps
i.
When a word appears
in a list, meaning is derived from those surrounding it
ii.
See Sweet Home. The
rule is often applied when Congress uses a broad term in a list in order to
avoid giving the single word too broad a meaning
iii.
Like ejusdem generis,
this does not apply when the court cannot find a common theme in a
group of words
c. Ejusdem generis
i.
List followed by a
general term
1. (A, B,
C, D & the like)
ii.
Look at shared
attributes of the items
iii.
If a series of specific
items ends with a general term, the term is limited to subjects
comparable to the preceding specifics
d. Expressio unius est exclusio alterius
i.
Expression of one is the
exclusion of another
1. See
Holy Trinity
a.
D
idnt include ministers in the exceptions.
e. Punctuation
i.
Alone not enough to
sustain or contradict an interpretation, but it is sometimes used to confirm
an interpretation
ii.
Ct. has held that

16

language inside of a parenthetical is entitled to less weight than lang

outside a parenthetical
iii.
See the case of Sir
Roger Casement
1. See US
v. X-Citement Video
a.
N
ot extending knowingly to the age of the person in the
video would result in ridiculous Type I errors.
i.
F
edEx example
f. Conjunctive v. Disjunctive Terms
connected by a disjunctive or should be given separate meanings, unless
context dictates otherwise
i.
Sometimes or and
and used carelesslycontext matters
ii.
Presumes that purpose
of statute is relevant
g. Last Antecedent Rule limiting clause
or phrase should be ordinarily read as modifying only the noun or phrase that it
immediately follows.
i.
See Barnhart v.
Thomas, Existing in the national economy only applied to other gainful
work, not the plaintiffs previous employment
ii.
Presumes that
Congress paid attention to lang when drafting; Congress knows courts
rely on canon
h. May vs. Shall - may permissive, shall
mandatory
i. The Dictionary Act - supplies general
rules of construction which apply to all acts of Congress unless the context
indicates otherwise (not really used anymore)
3. The Whole Act Canons
a. Whole Act Rule - presumes Congress
views each statute as a whole, creating a coherent context. Words should have
the same meaning throughout, and individual provisions should work together
and avoid redundancy.
i.
Identical words
1. Presum
ed to have the same meaning; yields where it is reasonable to
assume Congress had different intents (See Sweet Home)
ii.
Surplusage and
redundancy
1. A
statute should be construed so that no clause, sentence, or word
is superfluous or insignificant
b. Title and provisos
i.
Courts occasionally look
to other titles or provisos in the same statute to interpret certain clauses
(not usually entitled to controlling weight)
1. Titles
a.
I
n Holy Trinity, the Court looked to the title to support its

17

interpretation of the statute

2. Provis
os
a.
C
lauses that state exceptions or limitations to the
application of a statute. A common issue is whether a
proviso only applies to the rest of its specific provision or
the entire statute
4. Whole Code Canon
a. The Whole Code Rule directs courts to
construe language in one statute by looking to language in other statutes.
Muscarello across gun laws
b. In pari materia
i.
Statutes addressing the
same subject should generally be read as if they were one law
1. A later
act can be regarded as a legislative interpretation of an
earlier act in the sense that it aids in ascertaining the meaning
of words used in their contemporary setting
c. Inferences across statutes
i.
When Congress uses
the same language in two statutes having similar purposes it is
appropriate to presume that Congress intended the text to have the
same meaning in both statutes (temporal relation is important)
d. Repeals by implication
i.
Courts do not favor
repeals by implication and will not presume them unless the intention of
the legislature to repeal is clear
1. Usually
occurs when the later statute expressly contradicts the previous
act
e. All of these canons can be set aside
when there is clear congressional intent which is more valid
iv.
Substantive Canons - Rules about how the law should look
1. These canons can be overcome based on clear
language or other strong evidence that Congress intended otherwise
2. Rule of Lenity
a. Functions as tie breaker (it is a LAST
RESORT) in the event a word or provision has more than one interpretation
b. Provides reason to pick the
interpretation that is more favorable toward criminal defendants
c. US v. Santos (2008) p. 293 Proceeds
of illegal lottery
i.
Santos operated illegal
lottery for 24 years. Bets were collected through a network of runners.
Monies were used to pay runners and lottery winners.
ii.
Whether 1956 (a)(1)s
use of the term proceeds of unlawful activity, which is undefined, means
receipts or profits, or is the statute sufficiently ambiguous to apply the
rule of lenity?
iii.
Analysis
1. Definiti
ons of the statue
2. Diction
aries

18

a.
B
oth definitions acceptable
3. Crimina
l code (Whole Code)
a.
D
efined both ways
4. Federal
money laundering statute (Whole Act)
a.
A
mbiguity persists
5. Apply
the Rule of lenity in the face of ambiguity
iv.
Majority: (Scalia) term
wholly ambiguous from statute
1. Plaintiff
s attempts to clarify using later statutes is dumb
2. Rule of
lenity requires court to use profits
a.
P
urpose of rule of lenity
i.
N
otice
ii.
J
ustice/liberty
v.

Dissent: (Alito)

knowledge of profitability
1. Should
have looked at how proceeds was normally defined in the
context (customary meaning)
2. Neither
purpose is aided by this ruling.
a.
D
eterrence by not allowing criminals to fund luxurious
lifestyles
b.
I
nhibit growth by not allowing dirty money to fund growth
of criminal empire.
c.
C
riminals that are not profitable would get off
3. THE RULE OF FIVE
a. Most important rule in constitutional law.
i.
You need five votes to
win.
1. Only
need four agreements.
4. Canon of constitutional avoidance
a. Requires a court to avoid interpretations

19

of statutes which render them unconstitutional when other interpretations are

valid
b. Factors
i.
Ambiguity + grave
constitutional question
c. Why have this?
i.
Assume Congress
intends to draft a constitutional law
ii.
Saves law while
retaining constitutionality
1. If you
overrule a statute, you strike it down.
iii.
Judicial restraint
iv.
Prevents legislative
backlog
d. But to get to this point the court must
first determine whether choosing a particular interpretation would likely render
the statute unconstitutional
e. Zadvydas v. Davis (2001) p. 305
Indefinite Detention
i.
Whether USC 1231
(a)(6) authorizes indefinite detention of aliens admitted to the US but
subsequently removed, or does the statute have an implicit reasonably
necessary requirement in order to comport with due process under the
constitutional avoidance doctrine?
ii.
Majority: Indefinite
detention raises a series of Constitutional problems, therefore the court
has read a reasonableness requirement
1. Creates
a 3 month detention period
iii.
Dissent (Kennedy): the
rule of constitutional avoidance allows the court to choose between fairly
possible constructions, not to rewrite a piece of legislation, especially
where it is contrary to legislative intent, as here.
iv.
Rule: issue must be
unclear in order to apply constitutional avoidance
1. May
contains some limits to discretion
2. Kenned
y: Dont reach constitutional question b/c not inherent to the case
(ie not necessary to address QP)
f. Almendarez-Torres v. US (1998) p. 310
i.
Whether the felony
provisions in Section 1326(b)(2) are a separate crime or an enhanced
penalty.
1. If
separate, would allow evidence of previous crimes
(unconstitutional)
ii.
Majority: enhanced
penalty
1. Statute
written as such
2. No
grave constitutional problem
iii.
Dissent: Separate crime
1. Prior

20

convictions are a substantive element at common law & in many

states
2. Judicial
determination is likely a violation of due process
5. Federalism clear statement rule - Congress must use
express language when affecting the substantive rights of states
a. Prohibits a court from construing a
statute to interfere with state sovereignty absent express language indication that
Congress intended that result
b. It is not ambiguity per se, but the
absence of express language that opens up the possibility for its application
c. Establishes a principle of legislative
drafting: whenever Congress intends to alter the federal-state balance, it must do
so expressly in the statute
i.
This forces Congress to
make the hard policy choices in the statute
d. Gregory v. Ashcroft (1991) p. 317
Mandatory retirement at 70
i.
Whether the provision
of MO constitution requiring all non-municipal judges to retire at 70
violates the ADEA or included in the exclusions of appointees on a
policymaking level
ii.
Federalism clear
statement rule assisted the Court in avoiding the constitutional question
of whether Congress has the constitutional authority to apply the ADEA
to state judges
1. Avoided
constitutional avoidance canon because they dont want to strike
down the Commerce Clause (havent done so in 60 years)
2. Judges
are appointed, voted on in retention elections
iii.
Majority: Likely
employees at a policymaking level
1. Even if
not employees on a policymaking level, statute is too ambiguous
to so severely limit state sovereignty
2. Clear
statement rule, for judges to be included, must be specifically
named.
3. Govern
or
a.
P
lain language--policymaking supervision of lower
courts, administration of common law
b.
O
Connor + White: policymaking level
i.
O
Connor loves federalism, so she will try to
defend it whenever possible.
c.
N
oscitur - connected to elected official
iv.
Fed. Govt:

21

1. Noscitu
r - close working relationship
2. Judges
decide law, not policy
3. No
oxford comma after policymaking level so we should read the
two parts together.
v.
Dissent:
1. Majority
s rule overbroad, contrary to stare decisis.
a.
P
laces high burden of specificity on Congress
i.
T
his rule should only determine whether a
statute applies to a state at all (ADEA did)
b.
C
oncur in judgment judges are on a policymaking level
e. Clear statement rule & federalism:
i.
Constitutional value of
dual sovereignty
ii.
Limits preemption to
clear intent
iii.
Federalism enhances
diversity
iv.
Reasons against clear
statement rule:
1. It just
muddles up the law.
2. When
unclear Court gets to actually create policy
3. Dual
sovereignty led to civil war
4. Just
read the text and interpret this statute
5. Federal
rules promote uniformity (states history of discrimination)
6. Presumption against preemption
a. Questions of whether a federal statute
preempts other state laws
i.
Courts can apply the
preemption narrowly
1. Only
when necessary
b. Rests on the notion that the historic
police powers of the States are not to be superseded unless that was the clear
and manifest purpose of Congress
i.
Federal state balance
should not be disturbed unintentionally by Congress or unnecessarily by
the courts
c. This canon functions in a weaker
fashion than federalism clear statement rule
d. Two Types of Preemption
i.
Conflict preemption
1. When a

22

specific clause in a statute conflicts with federal law

ii.
Field preemption
1. When
federal govt decides to take over an entire field.
e. Applies in two circumstances:
i.
When a federal statute
contains an express preemption
1. Courts
can construe the provision narrowly to preempt some state laws
but not others
ii.
And when it does not (if
state laws frustrate the federal scheme or compliance with both federal
and state laws is impossible)
7. Presumption against retroactivity
a. Courts decline to give retroactive effect
to statutes burdening private rights unless Congress made clear its intent
8. Presumption against extraterritorial application
a. Legislation only applies to the territorial
jurisdiction of the U.S. unless otherwise stated
v.
Scriveners Errors and Absurd Results
1. Courts interpret statutes to effectuate what Congress
really meant and avoid interpretations that produce absurd results
2. US v. Locke (1985) p. 331Scriveners error
a. Whether a statutory filing deadline
prior to Dec. 31st can be construed to include claims filed on Dec. 31st.
b. On advice of BLM employee, claim
holders file on Dec 31st.
c. Claims escheat to govt
i.
Claim lost forever
d. Court does not allow claims. Plain
language reading
i.
Dates are arbitrary, not
value based
ii.
Dont want to interfere
with agency discretion
3. We have also seen absurd results in Holy Trinity and XCitement Video
c. Intent and Purpose-Based Tools
i.
Statutory Context and Legislative History
1. Legislative history hierarchy
a. Committee reports
b. Author/sponsor statements
c. Member statements -- unknown time,
statements of individuals
d. Hearing records
i.
Aware that courts may
use these statements later
ii.
May be made to clarify
exact purpose of language
iii.
Look to purpose of
statements
e. Other Legislative statements
f. Presidential & agency statements
2. Hierarchy by Breyer
a. When: Materials from late in legislative
process is more reliable
b. Who: Committees, sponsors, & other
more important individuals/actors

23

c. Why:
d. Purposes for which history was
created
i.

Committee reports

ii.

Floor debate (Middle

iii.

Press release (Most

(Audience is mainly court)

ground)
public audience)
e. What: Specificity of provision @ issue
f. Contra: Legislative history
i.
Not the law!
1. Simply
illuminates intent of the law, helpful clarification
3. Textualists criticize this approach because it is very easy
to cherry pick support and these sources often dont reflect the intent of the entire
Congress
4. Moore v. Harris (1980) p. 345 Black Lung relation to
Chevron
a. Whether the language employed in a
coal mine in the Black Lung Benefits Title is limited to traditional employeeemployer relationships or includes self-employed miners such that the secretarys
limiting a rebuttable presumption of causation to the former was lawful
b. Despite narrow interpretation by
agencies, courts & Congress, the court analyzes several sources of legislative
intent to conclude that a broad interpretation to include any person who worked
in a coal mine
i.
Working in v.
employed in whole act; they knew how to state it
1. Legislat
ive history & statutory purpose can rebut whole act (p 348)
c. Congress had amended the law to
expressly include self-employed miners, but the Court didnt think this was
evidence that such miners had been excluded earlier
i.
Just evidence they were
clearing up an ambiguity.
ii.
Where else have we
seen a future Congress informing a prior Congress?
1. Sweet
Home w/ the permit program precluding take
d. Chevron Step 1 case:
i.
Court concludes statute
was unambiguous, and therefore does not need to determine if agency
interpretation was reasonable
ii.
Changed Circumstances
1. Bob Jones University v. US (1983) p. 374 Racist
Universitys Tax Status
a. Whether the IRS denial of tax exempt
status under 501(c)(3) to a school with racially discriminatory admission policies
was a valid exercise of discretion as contrary to public policy.
i.
501(c)(3) - outlines
organizations that get tax exempt status
1. 8
discrete categories
ii.
170 - charitable
contributions that are exempt
1. 8

24

organizations in 501(c)(3)
b. Analogous to take/harm in Sweet Home
i.
Failure to define terms,
so the agencys interpretation is fair to use.
c. Changed circumstances may be
built into the definition of public policy.
i.
Public policy from its
inception was intended to be contextual
d. Why IRS?
i.
Authority has been
delegated
ii.
Inaction by Congress
e. Majority
i.
Implicit congressional
approval of IRS policy
1. 13
attempts to change in 12 years, never emerged from committee
2. Codifie
d similar exception for racist social clubs
ii.
Charitable
organizations/gifts cannot violate public policy
1. All 3
branches of govt declared racial discrimination contrary to public
policy
f. Dissent
i.
This is not supported by
a plain reading
1. Statute
has been amended numerous times w/o adding public policy
ii.
Neither court, nor the
IRS, is empowered to make the policy judgment the IRS & majority
opinion make.
g. Canon: Court should go beyond the
literal language of a statute if relying on it would defeat plain purpose of the
statute.
2. Leegin Creative Leather Products v. PSKS, Inc.
(2007) p. 387
a. Whether the practice of setting minimum
retail prices should continue to be considered per se illegal as per Dr. Miles, or
should the practice be treated to full rule of reason analysis.
b. Majority (5)
i.
Vertical price restraints
can have positive or negative effects
1. Adoptin
g a per se rule risks proscribing procompetitive conduct
2. Sherma
n ill suited to stare decisis treatment
c. Dissent (4)
i.
Repeal of fair trade laws
cuts against majority.
ii.
No evidence exists of
any change warranting a departure from per se.
1. Court
blows @ rule of reason
2. Change
should be gradual.
iii.
Wisconsin Right to Life

25

factors
1. Stare
decisis more rigidly applied in statutory than constitutional cases
2. More
leeway in overruling recent cases deemed wrongly decided
3. Previou
s cases create unworkable legal regime
4. If a
decision unsettles the law it may be overruled
5. If a
previous decision involves property or contract rights, where
reliance interests are involved, argues against overruling a case
6. Is the
rule embedded in our national culture
iv.
All factors lean in favor
of retaining Dr. Miles
v.
Common law rules
should be changed gradually
1. eg.
exceptions for new entry
3. Factors to consider for changed circumstances
a. Shifts in majority support
b. Public opinion
c. Public policy
d. Other laws passed
e. Cost benefit analysis
f. New facts
i.
e.g. changes in
technology
g. Age of statute
h. Dynamic terms that incorporate context
by reference
i.
Updating is built into
them.
d. Theories of Statutory Interpretation p. 401
i.
Intentionalism
1. Specific issue
2. Goal:
a. What meaning did Congress have in
mind when it wrote the statute?
3. Advantages:
a. Helps with ambiguity, constitutional,
legislative supremacy, retains original intent, limits judges placing their own
opinions into law and gives authority to Congress
4. Tools:
a. Leg. History, committee reports, floor
speeches, etc.
5. Criticism:
a. Cherry picking leg. history,
b. No unified intent
i.
But there must have
been some intent to pass bills
1. Someth
ing did get passed!
a.
A
nd we should really only care about who won.
c. Constitution Art. I: each house can set

26

its own rules & procedures

i.

And we should follow

these!
d. Too many people
e. Disagreement b/t voting parties look
at passing majority
ii.
Purposivism
1. What did they think then?
2. General question/purpose of law
3. Goal:
a. Examine what problem Congress
sought to address and cure
4. Advantages:
a. Remains loyal to the outcome Congress
sought to achieve
b. Similar to intentionalism, but more
general/broad
5. Tools:
a. Text & legislative history
6. Criticism:
a. Purposes are often hard to determine
and there are usually several purposes for a piece of legislation
b. Restrained by text if it mentions
purpose.
7. Difference from Legal Process Purposivism
a. LPP is what a Reasonable Congress
(made up of reasonable people #lol) would have pursued.
b. LPP is a response to the purposivism
problem of no unified purpose
i.
Provides a unified
purpose of reasonable people.
iii.
Legal Process Purposivism (Hart & Sacks)
1. Reasonable people pursuing reasonable purposes
reasonably
a. Tied to a non-specific reasonable
Congress
2. Advantages
a. Reasonableness imputes a reasonable
purpose to the legislature
i.
Solves coherence
problem
ii.
Creates an objective
standard
3. Criticism:
a. Judges have a lot of discretion to
determine what is reasonable
i.
Response - In every
type of interpretation the judge will just pick the evidence that suits his
argument anyway.
4. We would hope Congress is filled w/ reasonable people.
a. So cant just dismiss Congress as
unreasonable just to create your own agenda.
5. Should only look @ most specific legislative history
6. Text is a constraint to purpose
a. Legislative history cannot fly in the face
of the text
iv.
Imaginative Reconstruction
1. What would they have thought then?

27

a. Put yourself in their shoes.

i.
Broad interpretation
allows statues to survive in spirit, while narrow interpretation can lead to
absurd results
2. Applies to situations congress could have addressed but
didnt
a. Air force example
i.
Not in the constitution,
no airplanes existed when Constitution was written
3. Goal:
a. What legislature @ the time thought
about the issue at hand
4. Advantages:
a. Honest way to say something different
is going on, so lets try to solve it as the people who made the law would have.
i.
Not trying to hide it as
intent or purpose.
5. Tools:
a. Documents, resources at the time of the
statute.
b. General attitudes & values evidenced by
legislative history
6. Criticism:
a. Courts have all of the discretion!
7. Different from Legal Process Purposivism
a. No reasonableness element
i.
Looks @ specific
congress & actual compromises made therein
v.
Textualism (SCALIA)
1. Goal:
a. Interpret only the words of the statute in
context of the statute
2. Advantages:
a. Clear, no ambiguity, only follows the law
i.
Congress passed this,
so constitutional
1. And
actual purpose.
b. Fidelity to congress
i.
Follows only what was
passed
c. Doesnt allow judges to put on their own
spin
i.
Can pick dictionaries
though
d. Quick and easy, save hours on
researching history (b/c you dont use it!)
i.
But: Congress is bad @
writing statutes
ii.
Breyer: avoiding
legislative history for this reason is lazy
e. Legislative predictability
i.
Incentivized Congress
to be more specific.
3. Tools:
a. Text only
4. Criticism:
a. Limiting in scope & lifespan

28

b. Courts still have discretion over

dictionaries!
c.

Congress makes mistakes.

i.
Writing issues,

scriveners errors.
d. Lazy for judges to not research other
materials (public choice theory)
e. Why is it the courts job to dictate to
Congress to be more specific?
i.

Maybe Congress was

intentionally ambiguous.
1. And
Congress doesnt follow the rules the court asks it to follow
anyways!
f. Strict/narrow construction of statutes is
judicial activism is not following legislative intent.
g. Separation of powers problem
i.
Courts cannot force
Congress
1. Marsha
ls power to the court by limiting statutes and keeping
common law broad
vi.
Dynamic Interpretation (Nautical Metaphor)
1. Applies to situations Congress could not have foreseen
(contra imaginative reconstruction - something the Congress should have seen but
didnt include)
2. Goal:
a. Look @ legislation through the eyes of
changed circumstances
i.
Changes in technology,
policy, etc.
b. Looks @ modern reasonableness rather
than reasonableness @ time of enactment
3. Advantages:
a. Allows interpretation consistent with
modern values
4. Tools:
a. Text, legislative history, current opinions,
legal developments
i.
WIDE variety.
5. Criticism:
a. Does not follow original intent of
legislature
b. Judicial Activists
i.
Counter: Sometimes
legislature enacts common law concepts into statutes so courts have the
freedom! (Posner)
5. Regulation-Statutory Implementation by Agencies
a. The Administrative Procedures Act
i.
553 - Notice & Comment Rulemaking (Informal Rulemaking)
1. Rule - a general or particularly applicable statement
made by an agency.
a. rulemaking includes amending and
repealing rules.
b. Rule vs. Order
i.
An order is a final
disposition that is not a rule.

29

1. Includin
g licensing
a.
a
license is an agency form of permission.
b.
L
icense is a subset of orders.
2. Orders
are made through adjudication
a.
R
ules made through rulemaking.
2. Applies anywhere BESIDES:
a. Magic words
i.
on the record after
opportunity for agency hearing (formal rulemaking)
ii.
556-557
b. 553 (a)(1)-(2) exceptions
i.
Military or foreign affairs
ii.
Agency management or
personnel or public property, loans, grants, benefits or contracts.
3. Prompted from:
a. Petition by private citizens
b. Prompting from govt official
c. Agencys own volition
4. First step is to publish a Notice of Proposed
Rulemaking in the Federal Register
a. Must include:
i.
Legal foundation for the
rule
1. Authorit
y
ii.
Rules proposed
substance or issues
1. Why,
when & nature
iii.
Notice of public
proceedings
1. Backgr
ound what
b. Notice of Proposed Rulemaking
(NPRM)
i.
Legal purpose: provide
notice of time, place & purpose
1. Satisfy
APA 553
ii.
If unhappy with
Agencys response to comments:
1. Political
process
2. Sue
under APA,
a.

706 arbitrary and capricious

b.

30


553 didnt follow procedure
3. Petition
agency to reconsider
4. Go to
media
c. Publishing requirement does not apply:
i.
Subsection A is for
general day-to-day stuff
1. Also
general guidance documents for the public
a.
I
nterpretive rules, FAQ, How to use Obamacare, etc.
ii.
Subsection B - good
cause that notice and public procedure are impracticable, unnecessary
or contrary to public interest.
5. Next, the agency must accept comments on the rule
from the public
a. Obligation to consider all comments
i.
Time-consuming.
b. Comments received after the deadline
can be considered or reserved for supplemental rulemaking
6. Then, the agency issues a Final Rule
a. Must include the rationale and legal
authority
i.
General basis and
principle.
7. If the agency wishes to rescind or revise a rule, they
have to go through this process again
a. If parties dont like the new rule, can
petition for a new one, but unlikely to succeed
8. All proposed major rules must include a cost-benefit
analysis
a. Major Rulemaking
i.
$100M+ in economic
impact
b. Regulatory Flexibility Act requires
agencies to consider the effect of regulations on small businesses and local
governments
ii.
554 - Adjudications (Formal Adjudications)
1. On the record hearing
2. When does 554 apply?
a. On the record after opportunity for
agency hearing
i.
So 556 & 557 apply.
b. 554(a)(1)-(6) EXCEPTIONS
i.
Matter subject to a
subsequent trial of law and facts de novo in a court
ii.
Selection or tenure of
an employee
1. Except
ALJ
iii.
If decisions rest solely
on inspections, tests or elections
iv.
Conduct of military or
foreign affairs functions

31

v.
Cases in which the
agency is acting as an agent for a court
vi.
Certification of worker
representatives.
3. Notice is generally the same as 553
a. Facts & law vs. General info
i.
Different b/c its a trial
now.
4. Similar to a judicial bench trial, but conducted by an
Administrative Law Judge
a. Parties get the opportunity to present
info
i.
If they cant consent to
a solution, we go to 556-557
1. Decisio
n can be appealed within the agency
5. 554(d) - Employee of the agency (essentially acting as
a judge) can make decisions.
a. Must preside at reception of the
evidence
i.
(1) - Cannot consult w/
parties unless on notice for all to participate
ii.
(2) - Cannot be subject
to an employee or agent involved in performance or investigation by the
agency.
iii.
These exceptions
exist to maintain independence
1. We
dont want these people to be biased!
6. Can there be an adjudication where we dont use 554,
556 or 557?
a. Informal adjudication
i.
If it is not required in
554(a)
1. No
opportunity for a formal hearing.
ii.
Why arent these just
rules?
1. They
may not fit in rules
a.
e
.g. a license application that doesnt require a hearing
i.

adjudication w/o the magic words

7. Typically retroactive, applying the new rule to the
parties in the case
a. Allows less public participation
8. Judicial officers of an agency cannot be part of the
investigatory branches of an agency to avoid bias or colored judgement
iii.
552 - Freedom of Information Act (FOIA)
1. Agency must make stuff public & publish in Federal
Register (a)(1)
a. Available for public inspection & copying
(a)(2)
i.
How to respond to

32

requests for other info (a)(3)

2. Exceptions (b) get used all the time.
iv.
556-557
v.
Judicial Review
1. Trial like process rules
2. Applies to everything except (701)
a. Precluded by statute
b. Agency action is committed to agency
discretion by law.
3. 706 Can review all relevant
a. Can (1) force agencies to act, or
b. (2) hold unlawful or set aside past
agency action.
i.
Arbitrary & capricious or
otherwise abuse of discretion or unlawful (A)
ii.
Unconstitutional (B)
iii.
In excess of statutory
jx., authority or limitations or short of statutory right. (C)
1. Agency
acting outside its own authority
iv.
Unlawful procedure (D)
v.
Unsupported by
substantial evidence (E)
vi.
Unwarranted by the
facts to the extent that the facts are subject to trial de novo by the
reviewing court (F)
b. Agency Documents I: Crash Protection
i.
NPR
1. Changes Proposed:
a. Reversing rollout order
b. Unifying the date
c. Rescinding the order
2. Changes in situation
a. Costs higher than expected
b. Large cars getting phased out
c. Reagan
d. Public backlash was unexpected.
ii.
Final Rule
1. The actual rule is always very short and at the end.
a. The rest is just helpful background
2. Statute required these kinds of restraints
a. So it had to be amended.
3. In 1977 they made predictions & assumptions
a. Preventing 9k deaths and 65k injuries
i.
But many of the
assumptions never came to fruition
1. Airbags
werent installed
2. Seatbel
ts were detachable.
4. Problems with the study:
a. Changes in belt type
i.
They were made
detachable
1. So
people will detach them
a.
B
ut the agencys own study already accounted for this

33

small percentage.
ii.

Small cars, so unfair

to expand these numbers

1. But
agency itself said more people will be driving small cars!
iii.
Self-selection of
Rabbit/Chevette study
1. Even
now, people have found a way around these seatbelts.
a.
I
f they dont want to use them, THEY WONT.
i.
S
o this point has no merit.
b. Economic costs
i.
$1B increased prices
ii.
Loss of jobs w/ reduced
sales
iii.

No insurance discounts

iv.

Increases in fuel costs

1. ..

for people with autobelts

?
v.
Yet they ignore the
insurance companies estimates of billions of dollars of losses
resulting from recission
1. And
they completely ignore social costs.
5. Education programs are alternative
a. But no evidence these could have (or
ever HAVE) worked.
c. Agency Documents II: Magnet Sets and Fuel Economy
i.
What are the statutory options the agency has?
1. Acting under CPSA
a. 7 allows them to promulgate a safety
standard.
i.
This is what they want
to use here.
b. 8 allows them to create a ban on
magnet sets.
ii.
Statistical life
1. The life of a person who may die / be saved in the future
a. NOT how much a specific persons life
is worth.
i.
But a general
prediction number.
2. How do we value these?
a. Willingness to pay
i.
Big variations based on
ability to pay.
1. A rich
guys value of things is obviously different than a poor guy.
ii.
Large variations based
on demographics.
iii.
Russian roulette
example

34

1. People
are willing to pay a lot more to go from 1 bullet to 0 than they are
to go from 3 bullets to 2
a.
I
RRATIONAL
i.
I
ts the same decrease in probability!
b. Willingness to accept
i.
Ex. What people
demand in terms of hazard pay for dangerous occupations.
iii.
How do we value things that wont occur until the future?
1. Discount Rates
a. Tells you the present value of something
in the future.
i.
$10 today is worth more
than $10 tomorrow b/c of inflation.
1. If you
invest $10 today, you will have more than $10 in 10 years.
2. Multipliers
a. Standard used for various types of
spending
i.
Roadworks (1.3)
ii.
Unemployment
insurance (1.7)
iv.
Cost-Benefit Analysis
1. A decision rule, not a substantive rule
a. PROS
i.
Full accounting of
everything related to a topic
ii.
Fewer cognitive
problems than more qualitative methods
iii.
Forces you to prioritize
and focus on magnitudes (POP POP!)
iv.
Helps w/ setting
performance or goal-based standards as opposed to focusing on means
b. CONS
i.
Lots of things arent
quantifiable!
ii.
Complexity & indirect
costs.
1. Particul
arly in health care & environmental.
iii.
Distributional fairness
1. Should
we value costs on low-income people MORE?
iv.
Hard to quantify
innovation
d. Agency Decisionmaking: Economics, Science, and Politics
i.
Statutory Analysis
1. An agency must ensure that its regulations are within
the scope of its statute and are consistent with the terms of its statute
2. Only have to explain the reasons which support their
decisions, not both sides
3. Cannot issue retroactive regulations unless the
power is expressly granted by Congress

35

ii.

Economic Analysis and Cost-benefits

1. CBA on CBA

Pros

Cons

Might help identify goal based standards

which in turn can spur innovation

Many variables difficult/impossible to quantify

Full accounting of everything relating to a certain topic

(Identifies positive investment)

Complex & indirect costs

Promotes democratic accountability

Distributional fairness
iii.

Scientific Analysis
1. Scientific studies can be plagued by intentional or
unintentional bias, premeditation, and experiment design problems
2. Agencies are expected to gather information about risk
risk assessment and then determine how to respond to such risk, risk management
3. Toxicology, epidemiology, and statistical analysis all have
inherent problems which can be difficult to account for
a. Selection biases and other statistical
errors.
4. Science is hard. So are experiments.
5. Agencies are often required to use certain scientific
authorities as baselines or approval for their regulations
iv.
Political Analysis
1. Agencies often consider how the public is likely to
react to a regulation and whom a regulation is likely to affect
2. Agencies also consider the preferences of the President
and members of Congress when designing regulations
3. The team design of an agency can also have a
significant impact on the shape of legislation and the level of political control
e. Judicial Review IV: Chevron
i.
Chevron v. NRDC (1984) p. 531 Most important case in Admin. law
1. Whether, in the absence of legislative directive or history,
the EPA administrators use of a bubble concept to define statutory pollution sources
under the CAA was within his powers.
2. EPAs use of bubble concept is a reasonable
policy choice to make
3. Agency definitions change, and new definitions still
deserve the deference of the court.
4. 2 Step test
a. Is the statute ambiguous?
i.
Has Congress directly
addressed the issue?
b. If the statute is ambiguous, court will
defer to a reasonable agency interpretation
i.
Why defer to agency
interpretation?
1. Congre
ss, by not including this, has either explicitly or implicitly
delegated this authority.
a.
D
elegation justification
i.
A

36

gency exists to figure out ambiguities

ii.
W
hy impute delegation from an ambiguous term?
iii.
D
elegation isnt necessarily bad, but it is just a
fiction created by the courts.
2. Experti
se
3. Easier
and faster to defer
4. Accoun
tability policy choice
a.
A
gencies have had the chance to receive comments from
the public
i.
C
ourts havent.
c. Purpose of Chevron Test:
i.
Why de novo review?
1. Puts
checks on agency
2. Courts
have greater expertise & interpretation is their role
ii.
Why not de novo?
1. Agenci
es have technical knowledge/expertise
a.
C
ourts are generalists
2. Political
process values
a.
I
nstitutional competence
b.
G
reater opportunity for public input
3. Statutor
y lock in
a.
I
nhibits flexibility
b.
R
equires new legislation to change rule
iii.
Chevron balances de
novo and total deference
1. It
avoids problem of total deference because agency is ultimately
accountable to Congress
2. It
moves away from problems of total de novo because the

37

expertise is still useful if no clear Congressional intent

5. Court may NOT substitute its own construction of a
statutory provision for reasonable agency interpretation
6. Treats ambiguities in statutes as implicit delegations of
interpretive authority to agencies (REVOLUTIONARY)
7. Shifts background assumption about interpretive
authority from courts to agencies (REVOLUTIONARY)
8. Court defers both to policy judgments and legal
interpretations
a. Agency has primary interpretive
authority
9. Incentives created by Chevron?
a. Agencies know:
i.
Court will review
challenges, and the review will be governed by Chevron.
1. Any
reasonable arguments will stand so long as statute is
ambiguous
a.
V
ery deferential to agency.
2. Ganes
h - if it is ambiguous, you will PUNT and say it is
reasonable
b. As an agency lawyer, on what are you
going to base your interpretation (Step 1)?:
i.
Statute
ii.
Dictionary
iii.
Leg. history (but not for
Scalia)
1. Step 1
reviewed de novo, so judges may not be persuaded at all.
a.
S
o may not use this!
iv.

Step 2
1. Back to

same textual sources

a.
C
an use to show ambiguity
2. Here
you may want to use legislative history
a.
C
an be used as evidence of reasonableness
i.
E
ven if it gives you the worst choice, it is still
a reasonable choice!
c. Lame duck executives can use
ambiguity & agencies to accomplish domestic policy goals
i.
Agencies want to find
clarity, as it makes everything easier.
1. Ambigu

38

ity is a clear second choice

d. As an agency, which do you look to first,
statute or policy?
i.
Argument for statute
1. Avoids
possibly going against Congress
2. Easiest,
least costly route
3. May be
clearer
4. Its the
law!
a.
T
his is where lawyers will look first.
ii.
Argument for policy
1. Agency
has so much flexibility
a.
S
o it can come up with a policy and then see if it is
foreclosed.
2. Listens
to the goals of politicians.
10. Implications for agency interpretation
a. What forces push agencies towards
nautical or dynamic approach?
i.
Political forces
1. e.g. the
incumbent administration
ii.
Changed technology
iii.
Changes in social
norms/public opinion
b. What roots agencies in more
archeological/originalist approaches?
i.
Clear text
ii.
Legislative history
iii.
Threat of judicial review
c. Agency needs to use legislative history
as primary guide
i.
Agency should be
accountable and attentive to Congress
ii.
Congress can pull
funding, pass new law if agency isnt responsive
f. Other Policymaking Formats: Formal Adjudication and Guidance Documents
i.
554 - To be determined on the record after opportunity for agency
hearing
ii.
Format (as compared to Notice & Comment)
1. Input more limited
a. Formal adjudication may exclude some
views by missing arguments
i.
e.g. economic analyses
2. Dissent provides counterbalance not present in N&C
a. Even the possibility of dissent may
incentivize the majority not to go as far.
3. Lower accountability
iii.
Boston Medical Center (1991) p. 612
1. Whether interns & residents who work 40+ hr workweeks

39

& do not receive classroom instruction should be considered employee under 2(5) of
the act
2. Cedars-Sinai held they were not employees
a. But Court overrules this and finds
that they should get employee status
3. Employees because:
a. Compensated (stipend)
b. 80% time w/patients
c. Non listed under exceptions (expressio
unius)
d. NLRB is only entity treating them as
students
e. No grades/exams
f. Benefits
4. Students because:
a. Still learning
b. Corrupt academia
c. Very low pay (stipend)
d. Leg. history
i.
1979 bill failed to pass
5. Dissent: Change in rules only because of change in
board membership.
iv.
Guidance Docs
1. 553(d) Guidance
a. Interpretive rules
b. Statements of policy
c. Enforcement manuals
d. Excluded from notice & comment
2. Why do agencies like guidance documents?
a. Dont have to go through the rulemaking
process
i.
Less procedure
ii.
Less administrative
hurdles
b. De facto enforceable
c. No need to consult outside parties
i.
Less opportunity for
public input
1. So
agency can go about own agendy
d. Greater flexibility in amending
i.
A rule needs another
rule to change it
1. Guidan
ce documents may require much less.
e. Little executive oversight/review
3. Arguments Against
a. Too easy to change
i.
contra; one bite
doctrine
1. Has to
be oversight once they create reliance.
a.

Agency gets one bite of the apple without oversight.

b. Remove incentives for developing clear
& explicit rules
c.
4. Non-binding

40

Not entitled to Chevron deference

6. Control of Agency Actions

a. Presidential Control
i.
Generally
1. Tools
a. Appointments
b. Removals
c. Agenda setting (eg. Reagan and
Deregulation)
d. Budgets & appropriations
e. Review [OMB]
i.
OIRA-forces CBA on
agencies
2. Control Independent Agencies through
a. Appointment / removal of officers
i.
Good cause removal
power
b. Can set a policy agenda
i.
e.g. Reagans
deregulation
c. OIRA reviewing regulations
d. Political Help
e. Negotiations with executive agencies
3. Purpose
a. Policy Reasons
b. Politics
i.
Executives held
accountable/reelection
4. Why would prez want to control agencies?
a. So he doesnt get blamed for things
b. So things get done
i.
REELECTION
c. Constitution gives prez the power!
d. Concentration of leadership
e. Prez elected by all people
5. Why wouldnt we want prez to have control over
agencies?
a. Prez policy preferences may diverge
from congress
i.

Prez didnt draft the

laws.
b. Four year terms
i.
So we may get drastic
changes in policy
1. e.g.
Carter/Reagan
c.

Partisanship
i.
May be one sided
d. Agencies are experts, prez isnt!
e. Expansion of executive power
ii.
Free Enterprise Fund v. PCAOB (2010) p. 38
1. Whether dual tenure in a quasi (judicial, executive, &
legislative) agency contrary to Art. II & the vesting clause
2. PCAOB - non profit board (under SEC umbrella)
a. Power to regulate multiple aspects of
accounting
3. Quasi-judicial - Adjudication, etc.
4. Quasi-legislative - N&C rulemaking, guidance docs,
etc.
5. Quasi-executive - Enforcement, civil penalties, etc.

41

6. Majority (Roberts) - Contrary to A2 and Vesting Clause

a. Unduly limits executive oversight
i.
Nothing preventing
infinite levels of tenure protections
b. Formalism?
i.
Black & white, clear cut
rules
1. Very
little grey area in formalism
ii.
2 layers creates
insulating power
c. Ignores functionalist argument to keep
pandoras box closed
i.
Functionalism views
document as a living, breathing thing
1. Looks
to the function/purpose
a.
F
unctionalism is essentially policy.
i.
P
roblem with these arguments is that they usually
lead to policy debates, which could cut either
way!
ii.
B
etter to use Formalist argument because it
draws clean lines and is a stronger argument
d. Changes the good cause reason
required for the SEC to fire a member of PCAOB to being any reasons
i.
Heads of independent
agencies can only be removed for good cause
ii.
Heads of executive
agencies can be removed at will
1. Actual
statute of SEC is silent on removal but it was assumed to be for
good cause and has remained that way since (Court never
addresses it)
7. Dissent
a. Does not significantly limit Prez. power
b. Boards role strongly judicial
c. Board meant to be insulated from any
political pressure
i.
Technical expertise
d. Functionalist arguments
i.
Different structures can
address the various problems in the admin state
ii.
Expertise arguments
1. Precom
mitment theory (Ulysses & the sirens)
a.
H
owever, constitutional precommitment
8. DEFINITION OF OFFICERS - PCAOB member is

42

considered an executive officer

iii.
Regulatory Planning and Review - EO 12,866
1. Two Big Elements
a. Planning Process
i.
Create regulatory plan
of all significant regulatory actions
1. Forwar
d that plan to OIRA, reviewed by VP & agency heads.
a.
6
0 day comment process
i.
T
hen OIRA circulates it further
b. Review Process Deadlines
i.
PRE-NPRM - 10 days
ii.
Others - 90 days
iii.
Seen it before & no
change - 45 days
iv.

Extension (only once) -

30 days
v.
p. 673 (2)(A)-(C)
2. Established the White Houses authority to oversee
regulatory planning and review through the OMB and OIRA
3. Planning is monitored through the Unified Regulatory
Agenda and Regulatory Plans
a. Agenda includes all planned regulatory
action
b. Plans only include significant actions
c. Both submitted to OIRA
4. Significant or major actions are regulations
a. With $100 million impact on the
economy
b. Interfere with other agency action
c. Alter the budgetary impact of
entitlements/grants or
d. Raises novel legal or policy issues
5. Communication btwn. agency & non-govt
employees
a. Only administrator can communicate w/
these people regarding substance of a regulatory action.
i.
These communications
will be subject to guidelines
1. Must
invite agency rep
2. Forwar
d to issuing agency
3. Must
disclose to the public.
4. We
want to prevent bias!
6. OIRA can approve regulation by the agency or send it
back to be altered
7. These rules apply to agencies as defined in 3
a. Does not include independent agencies
i.
Ind. agencies included
under the planning rules
8. EO 13,563 is different because it (Obamas EO

43

reaffirming 12,866)
a. Includes scientific integrity
b. Regulations as a means of innovation &
integration
i.

Want to incentivize

i.

Science is getting more

moving forward
c.

Science

sophisticated.
d. Internet public participation
e. Agency flexibility
f. Different view of CBA
i.
Must be very clear that
benefits outweigh costs.
g. Retrospective Analyses of Existing
Rules
iv.

OIRA
1. Reagan did the first OIRA resolution
2. 12,866 Billy Clinton
a. CBA
i.
Include qualitative
values

ii.
Net benefits
3. Planning process
a. Meeting (VP & advisers)
b. Agenda setting (executive &
independent agencies)
i.
OIRA effects
1. Second
check on agencies
2. Reputat
ion effects
a.
R
ep. diminished by lots of reviews/rejections
3. OIRA
can really slow things down.
ii.

Sunstien Memo (Highly

cited legal scholar)

1. Clarifyi
ng/guidance docs
a.
F
orces individuals in agencies to read Sunstiens
ideas/research
2. More
sophisticated approach to science
3. Data
a.
F
orcing businesses to respond
b.
D
ata may be skewed
c.
B
usiness gaming the data

44

d.
H
owever,
i.
M
ay deter bad/pseudo science
OIRA Return and Prompt Letters
1. OIRA can write two kinds of letters to agencies
a. Return Letters
i.
Remit regulation to an
agency for more consideration
1. In letter
form so interest groups know they are working on behalf of their
interests
b. Prompt Letters
i.
Address an agencys
plans for the year or
ii.
Encourage agencies to
examine a certain issue
c. Both published to the public
i.
Establishes a paper trail
to build further action on
2. Li batteries
a. Vague
b. Purpose: show lobbyists action has
been taken
3. BEACH
a. Asking for info on EPA action plan
b. Why?
i.
Election year
ii.
Deadline recently
passed
4. Defibrillators
a. Punt study coming down the pike
(official story)
5. Tire pressure
a. OIRA-reevaluate indirect tire pressure
i.
not most cost efficient
rule
b. OIRA study
i.
4-9% --> not statistically
significant (no evidence of benefit)
ii.
NHTSA rejects your
statistics are garbage
6. Sunstien
a. OIRA writes very few return letters
i.
Usually agencies
withdraw regulations they think will be returned
b. Agencies (not OIRA) conduct the CBA
c. Indefinite delay
i.
OIRA can continually
hold up/send back regulations
d. Coordinating role among agencies
e. Public participation
i.
Appeases constituents,
no new information
f. OIRA doesnt consider political advice
i.
Claim: OIRA not
v.

45

political
1. Aggre
gator of information
7. Ozone ruling (1858 handout)
a. OIRA slow walking EPA ozone rule
b. Novel issues prevents agencies from
setting precedents & putting forward legal theories willy nilly
c. Open-door policy
d. CBA of utmost importance
e. Review of guidance docs
i.
White house is a they,
not an it
f. Some decisions kicked all the way to
prez
8. Improved disclosure is becoming a bigger concern for
agencies attempting to meet government transparency standards
a. Full disclosure makes it possible for
more govt data to be peer reviewed
9. OIRA review supported b/c
a. Increases agency accountability to the
political offices
b. Avoids agencies losing sight of their role
in the bigger picture of govt
10. Critics say OIRA process imposes a cost-based veto
that merely inhibits or delays necessary and beneficial agency regulations
vi.
Real challenges for agencies
1. Getting rest of executive branch to buy in
2. Intentional slow walking process
3. Nitpicking & fact checking from OIRA
vii.
Presidential directives
1. Can assert control of agency action by issuing preregulatory directives in the form of official memos to executive heads
2. Tend to promote rapid agency response
a. Garner more public attention than letters
promulgated by OIRA
b. Judicial Control
i.
In general
1. Courts can only review agency action ex post by
examining challenges to agency decisions
a. Most significant agency action is subject
to judicial review
2. APA specifies the scope of judicial review in 702
a. Arbitrary and capricious standard
ii.
VT Yankee Nuclear v. NRDC (1978) p. 845 no Monday morning
quarterbacking
1. NRDC challenged a license granted to the power plant
b/c the agency used informal rather than formal rulemaking
2. Licensing process required two permits
a. Construction permit &
b. Operating permit
i.
NRDC opposed to VT Y.
getting this one.
3. Hybrid rulemaking: informal rulemaking + formal
adjudication
a. Arose from court imposed additional
requirements on otherwise informal rulemakings
b. Practice ended as a result of VT
Yankee.

46

4. Whether the Atomic Energy Commission's proceeding

could be overturned by the court when the commission met the minimum requirements of
APA 553
a. No, 4 of the statute sets out a
ceiling on judicial control, not a floor.
i.
Cant add procedural
requirements to agency processes that meet minimum APA and statutory
requirements barring Constitutional demands or extremely
compelling circumstances
b. Adding additional procedures
undermines what Congress wanted to do with N&C rulemaking
i.
Agencies will never do
rulemaking b/c the only safe harbor is adjudication!
c. If expanded, review could be
unpredictable, leading to inefficient hearings
i.
Undermines
advantages of informal rulemaking
d. Agencies should be able to create their
own procedure.
e. S. Ct. has already held this multiple
times!
i.
Ossification - the belief
that courts are gumming up agencies.
f. Legislative history says defer to agency
discretion
i.
Atty generals manual
(legis. history)
g. p. 850 Absent constitutional constraint
or extremely compelling circumstances agencies should be able to make their
own procedural rules and methods
5. Holding
a. Expertise relevant to choice of
proceeding
i.
Experts have best
knowledge of what process is necessary for each specific
determination
ii.
Link b/t substantive
issue and process
6. Incentive effects
a. At the time, debate about whether
review of procedural or substantive review of agency action should be done by
courts.
i.
Rigorous review of
agency action by DC circuit
1. Sup.
Ct. looking to adopt prophylactic rules to limit DC court
a.
V
c.

T Y pushes power back to agences

Judicial Review V: Chevron Applied
i.
MCI Telecom v. AT&T (1994) p. 760
1. Dominant carrier (ie AT&T) must file tariffs, FCC exempts
non-dominant carriers
2. Whether the congressionally delegated authority in
203 allowing the FCC to modify any requirement for common carriers includes the
authority to make tariffs permissive when 203 states every common carrier

47

shall...file tariffs.
3. Scalia (Majority): NO
a. Not supported by the meaning of
modify
i.

Modify only refers to

minor changes
b. 120 days exception
i.
Tariff must exist for 120
days to matter
1. If
Congress kept the extension exception, why would they freely
allow you to remove the restrictions?
a.
W
ould be hiding elephants in mouseholes
c. Fundamentally changes regulatory
regime
d. [ignores 203(c) entirely]
e. Modify is clear, meant in narrow sense
f. Policy argument
i.
Congress should
address, court only interprets statutes
4. Stevens Dissent [treats it as a step 2 case]
a. Themes
i.
Flexibility of regulatory
state
ii.
Changed circumstances
1. Market
has changed from monopoly to competitive
b. Permissible
i.
Purpose of the statute
(antitrust)
ii.
Blacks definition of
modify:
1. Limit
or reduce
iii.
Expressio unius-1. Only
exception to modification authority is not extending 120 notice
period.
iv.
Textual arguments
1. Doesnt
specifically limit what the FCC can do.
2. 203
(c)
a.
P
rohibits service w/o tariffs unless the Act specifically
gives this authority.
i.
S
uggests there is a scenario where the Act does
give this authority
v.
Modify baseline Leegin
argument
1. FCC
gradually reduced tariffing requirements(not a sudden change)

48

2. No
Scalia response
ii.
FDA v. Brown & Williamson Tobacco Corp. (2000) p. 769
1. Whether the FDA has the authority to regulate tobacco
products as a drug or device under the FDCA as tobacco products are customarily
marketed
2. OConnor majority
a. Reviewing court should not look at
legislation in isolation
b. Contextual ambiguity
i.
Whole Act: If a
device/drug, the FDA would be required to ban them as misbranded.
1. Danger
ous to health & no directions for use
a.
T
herefore, FDA must ban if under its purview
i.
B
ut such action is barred by statute
c. Whole Code
i.
Six other tobacco
statutes passed since FDCA
1. This
implies that cigarettes will exist.
2. None
give FDA authority
3. FDA
claimed it did not have jx over tobacco repeatedly
a.
C
ongress relied on what FDA was saying, so its
effectively built into the statutes.
3. Breyer Dissent (4)
a. Majority focus on intended
i.
Intent does not have to
mean claim
1. Intent
can be inferred from circumstances
b. Follows the purpose of the statute
(reducing deaths from tobacco)
c. Industry documents fitting the drug &
device definitions
i.
Addictive and designed
to enhance addiction
d. Rejects whole code argument
i.
Not inconsistent with
FDA jx does not preclude FDA authority
e. Denial of jx changed circumstances
i.
Change of
Administration policy
1. New
health studies, tobacco companies knew of danger and lied
about it.
f. Broad delegation of power to FDA
g. Majority opinion counterintuitive
iii.
Similarities b/t MCI & Brown & Williamson (Also, power away from

49

agencies)
1. Statutory scheme defeats agency interpretation
2. Elephants in mouseholes
a. B & W tobacco regulation (elephant)
b. MCI eliminating tariffs (elephant);
modify (mousehole)
3. Major question doctrine - Courts will not infer that
agencies can determine major policy absent clear legislative intent
4. Chevron step 1 cases
a. No clear congressional intent
b. Excluding things from definition rather
than defining authority altogether.
5. Delegation; intelligibile principle (Whitman)
a. Can say anything as long as it isnt do
whatever you want (LENIENT)
i.
Statutory based
argument, not constitutionally based
b. Argued as backdoor ways into
nondelegation doctrine using Chevron.
6. Clear Statement Rule - both cases demand it
d. Judicial Review VI: Chevron and Mead
i.
US. v Mead Corp. (2001) p. 786 Chevron Step 0
1. 46 customs offices organized under a HQ, issue 15,000+
letters/year
2. Whether tariff rulings are entitled to judicial deference
when they are not promulgated through notice or comment rulemaking
3. Majority:
a. Indication of delegation by Congress
i.
Authorization of
rulemaking/adjudication
b. When Congress has delegated to an
agency the power to make rules and the agency acts in exercise of that
authority, the agencys action qualifies for Chevron deference
c. STEP ZERO (Mead):
i.
Agency interpretation
qualifies for application of Chevron only if:
1.
Congress delegated interpretations that carry the force of law
AND
2. Agency
has exercised that authority
d. Not sufficiently formal for force of law for
agencys classification to receive Chevron deference
i.
Force of law
1. Delegat
ion of authority to make decisions with the force of law may be
shown in a variety of ways, as by an agency's power to engage
in adjudication or notice-and-comment rulemaking, or by some
other indication of a comparable congressional intent
2. How
do we figure out what carries the force of law if tariffs, i.e.
TAXES dont?
a.
N
umber of letters
i.
H

50

ere, 15k per year, so cant possible be the same

as laws
b.
T
hird party effects
i.
H
ere, not precedential at all.
c.
A
dditional oversight
i.
I
ndependent review by CIT, so in favor of force of
law
3. Policy
statements, agency manuals, guidance documents = NO
FORCE OF LAW.
e. Values emphasized in this opinion
i.
More power to
congress/courts
ii.
Procedural legitimacy
increases deference
1. More
procedure, more deference.
f. Reverse and Remand to apply a
Skidmore test
4. Scalia dissent:
a. Inefficient and illogical
i.
Makes informal
rulemaking essentially mandatory
5. Greatly diminishes regulatory flexibility
a. No relationship b/t processes and
deference
i.
The point of procedure
is to facilitate judicial review!
b. Just apply Chevron (under which tariff
letter is OK)
6. UPSHOT OF MEAD
a. When reviewing an agency
interpretation:

51

7. Similarities between Mead and Whitman

a. Whitman - Both look for outer limits on
agency action (intelligible principle)
i.
W - Congress must
provide intelligible principle
ii.
M - Court will not
supply reasoned basis for agency action
b. W - Constitutional Level
i.
Congress must provide
c. M - Statutory level
ii.
Motor Vehicle Mfr.s Assn of the US v. State Farm (1983) p. 810 Hard
look
1. Whether the rescission of the passive restraint
requirement by the NHTSA was arbitrary and capricious under the APA 706 (2)(a)
2. A&C review applies to rescission
a. No real distinction b/t recession and
rulemaking
b. What category of agency actions
does A&C apply to?
i.
Formal rulemaking /
adjudication
1. Substa
ntial evidence
ii.
N&C / Informal
adjudication
1. Arbitrar
y & capricious
a.
G
uidance docs etc. from 554 are under A&C
3. What is Arbitrary & Capricious review?
a. Examine relevant data
i.
Articulate a
satisfactory explanation including a rational connection between
facts found & choice made
b. Did agency consider?
i.
Factors Congress said
not to consider
ii.
Factors that should
have been considered
c. Is explanation so implausible?
4. Holding: Decision was A&C.

52

a. No consideration of mandating airbags

b. Too quick to discount safety benefits of
automatic restraints
i.

Failure to

provide/analyze evidence
c. Studies offered insufficient evidence
d. Used Rabbits & Chevettes study even
though agency itself said this study wasnt representative.
e. Motor Vehicle Safety more important in
statute than economic impact
i.
CBA carries less weight
f. No consideration of non-detachable
belts
i.
Must explain reason for
not addressing viable options
5. Rule from State Farm
a. Agency changing course must supply a
reasoned analysis
b. No support for politics as a factor in
decision making
i.
Cant just defer to
industry!
1. Agency
capture argument
6. Concurrence & Dissent
a. Change in Administration a solid reason
for reappraising standards
i.
As long as supported
by reasoning
7. Issues
a. Ossification of agency action
8. How much information is necessary?
a. ?
9. Incentives created for agencies
a. Do more everything! TAKE LONGER
i.
Studies
ii.
Work
iii.
Meetings
b. Consider broader ranges of alternatives
10. Comparisons of State Farm and Previous Cases
a. Chevron: Power to agencies
i.
Step 2 Constraint on
Congressional delegation (must be reasonable)
ii.
Interpretation of
ambiguous terms
b. State Farm: Power to courts
i.
Constrains agency
discretion
ii.
Applies to any N&C,
informal rulemaking, (including guidance documents)
1. Does
not apply to formal adjudications (substantial evidence standard)
or formal rulemaking
c. State Farm; MCI & B&W
i.
All limit agency power
while increasing Court power
1. State
Farm explanation insufficient

53

2. MCI &
B&W unclear
ii.

All also address the

past actions of Congress & the agency.

1. B&W
Other statutes address issue
2. State
Farm History of regulation
3. Tensio
n between expertise & changed circumstances.
d. State Farm & Mead
i.
3 buckets in Mead
1. N&C IN
2. Adjudic
ation - IN
3. Guidan
ce docs, etc. - OUT (maybe)
a.
A
morphous test for if Congress would have wanted these
in.
ii.
Both give us a broader
totality to determine what we want.
iii.
Both look to Congress
did/did not want them to do.
1. Mead
Force of Law
2. State
Farm Factors to consider/not consider
11. Approaches to State Farm & Chevron
a. State Farm is the reasonable element of
Chevron 2 (DONT USE)
b. Chevron = Statutory interpretation
i.
State Farm = Evaluating
regulations, policy and other actions.
c. State Farm supplements Chevron
i.

iii.
Drawing on State Farm & other decisions, to survive judicial review, at
minimum agency must (p. 430):
1. Base decision on relevant factors & no irrelevant factors
2. Consider all important aspects of the problem
3. Consider alternatives within the ambit of existing
regulation
4. Make rational connection between the evidence & its
conclusion

54

5. Offer a plausible policy, even if not the one that a court

would adopt
6. Justify changes in course from prior policy
7. Disclose scientific or other data upon which it relied
8. Consider comments submitted in response to the NPRM
iv.
CBA - Can function as a back door around VT Yankee, can send agency
back to do more procedures
v.
Skidmore (1944) p. 754
1. Whether employees time spent on call, but not actively
engaging in work, should count as hours worked.
2. Persuasive deference to agency decisions made through
experience and good judgment
3. Weight of such a judgment in a particular case will
depend upon the thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all those factors which give it
power to persuade
a. Agency interpretation may be entitled to
some deference regardless of form
b. Later changes receive less judicial
deference
c. Court retains interpretive power, looking
at
i.
Agencys
care/thoroughness in reaching decision
ii.
Its consistency w/
earlier & later pronouncements
iii.
Formality
iv.
Relative expertise
v.
Validity of agencys
reasoning
vi.
Persuasiveness of the
agencys position
vi.
Barnhart v. Walton (2002) p. 798 Application of Mead
1. Whether the SSAs interpretation of the definition of
disability was lawful
a. Issue of the inability caused by the
disability not lasting 12 months even though it was expected to
b. Longstanding definition, not a
rulemaking
2. Presence/absence of formal procedures not
dispositive
a. eg. notice & comment rulemaking
e. Congressional Control
i.
Tools:
1. Direct
a. New Legislation
i.
Hard and time
consuming
ii.
Congressional Review
Act (CRA) allows a joint resolution of Congress to overturn an agency
rule (Same as a new legislation so very hard)
1. Major
rules (& CBA) submitted to Congress
a.
C
ant become effective for 60 days.

55

i.
A
pproval mechanisms like passing new laws.
b. Appropriations
i.
Can withhold or restrict
money (Not as hard as new legis., but still difficult)
1. Appropr
iations are yearly, so a continuous form of control
2. Discon
nect b/t appropriations committee and substantive mandate
committee
c. Legislative Veto
i.
Statutory provisions that
enable Congress to reverse an agency decision without enacting a new
statute
ii.
INS v. Chadha (1983)
p. 726
1. An
immigrants student visa expired and the AG suspended his
deportation, but House voted to oppose permanent residency
2. Any
legislative action of Congress must follow the Constitutional
requirements of bicameral approval and presentment to the
President
a.
E
fficiency does not preempt the Constitution
b.
O
nly 4 provisions in the Constitution that allow one House
to act alone and they are explicit and unambiguous
3. Holding
produced some controversy b/c it overturned all of the legislative
veto provisions in the law at the time (several)
4. Whitma
n avoids this concern in agencies by requiring them to abide by
an intelligible principle which has been approved by Congress
and the President
iii.
Presents concerns
about a current Congress having a shortcut to undermine the legislation
of a previous Congress
2. Indirect
a. Oversight Hearings
i.
CRA also requires
agencies to submit major rules and cost-benefit analysis to Congress
and GAO before rule takes effect
ii.
Includes the power to
request documents or testimony from agencies
1. Can
use a subpoena if agency fails to comply
iii.
Failure to obey a
congressional subpoena can place an agency head in contempt of
Congress which requires a bicameral resolution
iv.
Executive privilege
enables the president to protect the confidentiality of executive
communications from legis. or jud. investigations

56

ii.

Gorsuch/EPA example
1. What led to her fall from office?
a. Abolished enforcement office
b. Banned hazardous waste requirement.
c. Aloof manner
i.
Kept office in rival DOI
d. Hit list (allegedly)
i.
Morale killer regardless
of if it was true
e. Meetings with industry reps
f. Staff with no environmental
experience.
2. Moral of the story - Be nice to people!
a. If you try to win people over, you will
probably encounter less hostility when you do stuff they dont like!
iii.
Too Big to Jail example
iv.
Goals of Oversight Hearings
1. Political
a. Press
b. Interest group favor
c. Pressure regulators
i.
e.g. Anne Gorsuch
d. Narrative
e. Embarass/harass for political gain
f. Electoral
i.
Lets you claim to your
constituents that you supported stuff
1. Actually
passing bills is HARD!
g. Insider politics
i.
For others
1. Endors
e their bill so they will support you in future
ii.
For yourself
1. Think
House of Cards.
2. Policy
a. Message sending
i.
Effect on industry wide
practices
1. Making
an example out of someone
b. Effect on regulators
i.
Pressure for new
regulations
c. Change the narrative
i.
In turn, change public
opinion
d. Information
e. Legal consequences (perjury)
f. Foundation-building for the future
i.
Setting up the scene for
future legislation, etc.
g. Transparency
h. Harass (prevent anything from getting
done)
i.
Deplete political capital
ii.
Lost time
i. Raise the salience of an issue

57

3. Both
a. Shift blame/accountability
i.
Vertically or horizontally
b. Pressure regulators
c. Increase salience of issue
d. Build narrative
4. When will we see oversight hearings?
a. Divided govt
i.
More, more aggressive
oversight
b. If undivided, still will see if:
i.
Election coming up
ii.
Centrist senators
attempting to distinguish selves from non-centrist Executive
1. And
vice versa
5. As prez, how can you mitigate possibly bad
oversight coming up?
a. Divert attention by press
i.
Flood the media with
stories the day of the hearing.
b. Distance yourself
i.
Throw agency under the
bus
c. Issue narrowing
i.
But Senators do what
they want
6. How effective are oversight hearings at controlling
agency action?
a. Direct v. Indirect Control
i.
Congress really only
has indirect control
1. New
legislation or appropriations are the only direct control it has
ii.
Courts & Executive
have direct control.
b. Agenda-Setting
i.
Prez can be
aggressive/proactive with his agenda
ii.
Congress takes longer
iii.
Judicial has to wait for
a case.
c. Form v. Substance
i.
Prez controls form
ii.
Congress controls
substance
iii.
Courts control
substance
d. Expertise
i.
Congress can ensure
agencies are using their expertise by:
1. Using
statutes to force studies, etc.
2. Confirm
ation hearings
ii.
Prez has
appointments/removals
e. Ex Ante v. Ex Post

58

i.

Congress has mostly ex

ii.

Courts have only ex

ante
post

59