LEGISLATION AND REGULATION CHECKLIST

What authority did Congress delegate to the agency? [ORGANIC STATUTE]

1. Does it satisfy the non-delegation doctrine? is there an intelligible principleclear terms on which the agency
can operate [Hampton; Whitman] [not a strong argument]
2. Does the statute specify the procedure the agency should use to promulgate standards?
- IF NO we turn to the APA for default rules of agency procedure[559]
- IF YES does the statute limit agency options?
3. [Step 0: Mead] Has Congress given the agency power to promulgate rules or orders w/ the force of law?

Was the action procedurally appropriate? [APA+ORGANIC STATUTE]

1. What type of result?
- IF statement of general or particular applicability and future effect = Rule [551(4)]
o Informal rulemaking procedure is appropriate [553(b)(c)(e)]
o UNLESS statute says on the record after opportunity for an agency hearing THEN procedure
must be formal rulemaking [Fl. E. Coast Ry.] [556, 557]
o IF not subject to notice + comment THEN publication rulemaking
- IF final disposition of an agency in a matter other than rulemaking/licensing = Order [551(6)]
o Formal adjudication usually required by statute binding on parties [554, 556]
o Informal adjudication dont know much about EEOC
2. Procedural Challenges:
- Informal Rulemaking: 553 lays out requirements that an agency must comply w/ for N+C rulemaking
o 553(b) notice requirements in the NPRM
Is the NPRM published on the Federal Register?
Does the NPRM include a statement of the time, place, and nature of the rulemaking
proceedings?
Does the NPRM refer to the legal authority under which the rule is proposed?
Does the NPRM state the terms or substance of the proposed rule or a description of the
subjects and issues involved?
Must disclose evidence that agency relies on (Nova Scotia)
This goes to whether the interested parties were given a real and meaningful
opportunity to comment on methods/data used by agencies [553(c)]
Note: agencies are allowed to adopt additional procedures if they wish [Fl. E. Coast Ry.]
o 553(c) opportunity to participate requirements (comment period)
Does NPRM allow for submission of written data, views, or arguments?
Did it alert interested parties? [think Choc. Milk goes to notice]
o 553(c) concise general statement of basis and purpose final rule
Did it fail to respond to concerns raised in NPRM? [Nova Scotia]
Did it not address vital issues raised in comment period? [Nova Scotia]
Was it (along with the final rule) published in the CFR?
o OIRA Compliance: was it a significant regulatory action i.e. over $100MM cost mention
that would have to be subject to OIRA review and the benefits must justify the costs qualitative
- Formal Adjudications: 554 and 556 cover the procedural requirements of adjudications
o Did the agency rely on its authority delegated by statute in commencing the action? [Chenery]
o Did the agency present a post-hoc justification for a decision made? [ do this Chenery]
o Might there be reliance concerns? [Bell Aerospace never used, but four factors]
- Publication Rulemaking: 553(b); 552(a)
o If description of prospective intervention = general statement of policy
o If advising public of the agencys construction of statutes/rules = interpretive rule
o 553(b): states that N + C requirements apply to these [Hudson v. FAA GSoP]
o 552(a): requires that they be published in Federal Register when they are of general applicability
o BUT ask whether should have been subject to N + C: [American Mining test] [Hoctor example]
Does it fill a legislative gap?
Was it published in the CFR?
Does the agency invoke statutory authority?
LEGISLATION AND REGULATION CHECKLIST

Does it involve a significant amendment?

- Court may not impose additional procedural requirements for agency action [Perez]
- Court does not evaluate wisdom of agency choice of procedure [i.e. rulemaking v. adjudication] [Chenery]
Note the legal authority of the judiciary to review agency action. [Constitution + APA 706]

Does the agencys interpretation [of its authority] get Chevron deference?
STEP 0: [Mead] did Congress give agency power to promulgate rules/orders w/ force of law organic statute + action itself
IF YES STEP 1
IF NO Skidmore Respect [walk through analysis below]
Note: typically notice and comment, formal adjudication, plus force of law go to STEP 1

STEP 1: [Chevron] has Congress spoken to the precise question at issue? (aka is the statute ambiguous?)
Use methods of interpretation:
1. Statutory text
2. Structure of statute
3. Purpose
4. Pre-enactment legislative history
5. Canons of construction
6. Post-enactment legislative history
- Ex: MCI v. AT&T (Scalia majority) textualistdefinition of modify ambiguous
- Ex: FDA v. Brown & Williamson (OConnor majority) legislative history plus the political and economic
significance indicates that Congress has spoken

IF Congress has not spoken directly STEP 2

IF Congress has spoken directly no deference to agency interpretation

STEP 2: [Chevron] is the agencys interpretation permissible?

- Ex: MCI v. AT&T (Stevens dissent) if there are multiple meanings of modify then that means its ambiguous
STEP 2: purpose of tariff reporting was to ensure major carriers were not offering different pricing, so it is
permissive under this purpose for the FCC to remove the requirement for non-major carriers
- Ex: FDA v. Brown & Williamson sort of goes to step 2, but kind of blends step 1 and 2 [?]

IF permissible deference to agency interpretation

IF not permissible no deference to agency interpretation

Was the agencys action arbitrary and capricious under 706(2)(A)?

1. Was there a rational connection b/t the facts found and the choice made? [State Farm]
- whether the agency relied on factors not intended by Congress
- whether the agency entirely failed to consider an important aspect
- whether the agency offers an explanation that is counter to the evidence
- whether explanation is so implausible that it be attributed to difference in views or agency expertise
2. Note IF amendment to rules [FCC v. Fox]
- Agency does not need to show why reasons for new policy are better than the old
- BUT the agency cannot disregard prior contrary conclusions or retroactivity reliance
3. Note IF failure of agency to act [Massachusetts v. EPA]
- Failure to initiate rulemaking IS subject to review
o Reason for inaction must conform to the authorizing statute
o Cannot be based on overlapping agency obligations [what OIRA/OMB are there for]
- BUT failure to initiate an enforcement action subject to judicial review [w/in agency discretion]

SKIDMORE ANALYSIS: [to get Skidmore respect]

1. Types of agency action subject to Skidmore analysis: interpretive rules, policy statements, informal adjudications, and
other agency actions that do not hold the force of law
2. Weight of such a judgment will depend on:
- Thoroughness evident in its consideration
LEGISLATION AND REGULATION CHECKLIST

- Validity of its reasoning

- Consistency w/ earlier/later pronouncements
- All those factors which give in the power to persuade
1. Statutory text
- Plain meaning [TVA v. Hill; Griffin]
- Dictionary use [Taniguchi]
- Ordinary usage [Nix v. Heddon (tomato), US v. Costello (harboring)]

2. Structure of the statute

- Whole act rule: interpretation of each section in the context of the whole enactment
- Critical assumption is coherence is it internally consistent?
- Rule Against Surplusage every word/phrase adds something [W. VA Hospitals v. Casey, Yates]
- Presumption of Consistent Usage [Marshall]
- Titles not usually used as evidence of statutory meaning [BUT Yates plurality]
- Whole code rule: rarely used, looks to consistent usage throughout USC [W. VA Hospitals v. Casey]
- Location of statute in code [Yates]

3. Purpose
- Mischief Congress meant to cure [Holy Trinity, generally King v. Burwell]
- Purpose statements given no greater weight than other parts of statute
- Posners realism what was the legislature trying to do [Marshall dissent]

4. Pre-enactment legislative history

- Committee reports: given the most weight [Blanchard v. Bergeron]
- Statements by legislators, floor debates [N. Haven Bd. of Educ. v. Bell]

5. Canons of construction (include w/ statutory text, but note that not dispositive)
Semantic Canons:
- Noscitur a sociis: it is known from its associates light shed on meaning of an ambiguous word by reference to the
words associated w/ it [Ali, Yates]
- Ejusdem generis: of the same kind, class, or nature (in enumerated lists) general words are construed to embrace
only those objects similar in nature (characteristic) to those specific objects enumerated or listed [Ali, Yates (different
characteristic in plurality/dissent)]
- Expressio unius: [Ali Kennedy dissent]
Public Law Norms:
- Yield absurd results? [Public Citizen, Holy Trinity]
- Be against public policy? [Bob Jones]
Substantive Canons:
- Constitutional avoidance [NLRB v. Catholic Bishop]
- Rule of lenity usually a tiebreaker [Marshall dissent]
- repeal by implication [TVA v. Hill]

6. Post-enactment legislative history [Montana Wilderness]

Common Forms of Legislative History: (from most valuable to least)

Committee Reports: most reliable, but critiqued because it is only written by a couple of legislators, not the entire
senate/house, but thought to be most representative of the whole
Sponsors Statements: may offer a well informed view of the factual, legal or policy context in which the bill was drafted
Floor Statements: can show that floor members had different views. Occasionally treated as useful evidence of legislative
intent. Can be used to corroborate other evidence of meaning or demonstrate a widespread sense of legislators objectives.
Statements made during Hearings: Court is suspicious of the probative value of statements made during hearings that did
not make it into the official committee reports. May be said to disclose the factual circumstances and legal assumptions
that witnesses brought to the attention of the drafters.
Successive versions of a Statute: argue that changes to draft bills during the legislative process as well as rejections of
proposed changes should carry essentially no weight. But some argue that if a bill is changed in a significant way it may be
influential to see.
LEGISLATION AND REGULATION CHECKLIST

Subsequent Legislative Action (or Inaction): Most common form is legislative acquiescence in a judicial or administrative
construction of a statutory provision. Some argue that if Congress fails to overturn an administrative or judicial
interpretation, it implicitly agrees with it.
LEGISLATION AND REGULATION CHECKLIST

How to Answer Question 1:

1. Apply Mead
a. Does it appear Congress delegated authority to the agency generally to make rules carrying
the force of law, and
b. Is the agency interpretation pursuant to a congressional delegation of authority to issue
orders/rules having the force of law?
i. Apply American Mining Congress Here
1. Does it fill a legislative gap?
2. Was it published in the CFR?
3. Does the agency invoke statutory authority?
4. Does it involve a significant amendment?
c. If the answer to both of these questions is YES Go to Step 2, If the answer to either is NO
Go to Step 3.
2. Apply Chevron
a. Has Congress directly spoken on the precise question [specific intent]? (I.E. Is the statute
ambiguous?)
i. Either try to support or kill the regulation in this step.
1. A good deal of textual analysis goes here. Some like Scalia only use
statutory interpretation. Most will use in conjunction with legislative
history.
b. If the statute is ambiguous, the only question for the court is whether the agencys answer
is based on a permissible construction of the statute.
i. The Court has only found interpretation to violate step 2 twice, question is not
whether interpretation is right, but whether its reasonable. By the time you get to
this step, youve won or lost.
3. Apply Skidmore
a. The weight of the agency depends on:
i. The thoroughness of the evidence in its consideration
ii. The validity of its reasoning
iii. Consistency with earlier and later pronouncements [GE v. Gilbert, dont like flip
flopping]
iv. And all those factors which give it power to persuade, if lacking power to control
[so other factors]
1. Is it a contemporaneous interpretation; did a lot of time elapse b/w statute
and agencys interpretation/position?