2.

1) Statutory Interpretation: If literal construction is absurd, court must construe the statute to avoid absurdity (Ken, Pub Citizen)
School/Approach to Statutory Interpretation Tools/Key Words
Textualism (should be starting point): if a literal Letter of law; common usage; to define terms look to: judicial/legislative precedent (has
interpretation of the semantic meaning leads to an absurdity Congress used word before?), common/dictionary use; consider audience; semantic
then you can look beyond the plain meaning of the text canons; absurd result?; (statute manifestation of legislative negotiations, interjecting policy
(Kirby). Look at other similar statues written at same time in interpreting is legislating (const says no) Doesnt like LH
Purposivism: tension between text and purpose, more Spirit of law; legislative history (note arguments against LH: senate/committee reports
important to look towards to purpose. Language inherently stronger than statements on floor, LH not voted on like laws are, LH unreliable); mischief
ambiguous, legs. Cant foresee all possibilities, shouldn't hold statute designed to remedy (Holy Trinity: problem was influx of unskilled labor, not skilled
to rigid interpretation labor). Look at LH when text is ambiguous
Intentionalism What would Congress enacting statute have voted on this issue?
Congress cannot delegate legislative powers to agencies. Agencies must be given "intelligible principle on which to base their regulations. When phrase is
unambiguous, it cannot be expanded or contradicted by statements of individual legislators/committees during enactment process.
Semantic Canons: text analysis Substantive Canons: value vindication/judicial presumption for an outcome
Ejusdem Generis: of the same kind. list of specific terms followed by a Federalism: when a federal law regulates a states core functions, protect
encompassing term at end, last term narrowly means only things similar to state autonomy and sovereignty by construing federal statutes narrowly to
items specifically mentioned. (i.e. "other dangerous weapons" narrowed by avoid excessive encroachment of state prerogatives. (Congress must express
type of weapons mentioned earlier People v. Smith) clear intent to alter balance b/w state and fed. Gov.) (Gregory v. Ashcroft)

Expresio Unius: Because we specifically included these things, we exclude

all others. (Apply only when items expressed are members of an associated
group or series justifies that items left off was deliberate) This assumes that
lawmakers took a lot of care with their list and are not relying on courts to
fill in the gaps. Logically this is not true either. If I say all men are mortal,
does that mean all women are immortal? No.
In pari material words have the same meaning in statutes of common
purpose passed at a similar time. consistent meaning identical words used
in different parts of the same act are intended to have the same meaning
Constitutional Avoidance: Avoid serious Constitutional questions; look for a
clear statement from Congress to determine if it wanted to go near
constitutional line; if no clear statement, interpret in a way that doesnt
violate constitution, even if no ambiguity (NLRB v. Catholic Bishop)
Rule of Lenity: When ambiguous, resolve ambiguities in favor of defendant;
read statute against government; generally applies w/ criminal
statutes/penal law

Noscitur a Sociss A word is understood by the company it keeps. Look at
text surrounding word to get a sense of its meaning (Gustafson)
Superfluous lang: One should interpret the meaning of a word in a way so
other parts of the statute are not rendered redundant (automatic couplers
v. just couplers)but is congress really this careful.
Expos Facto Canon - Dont interpret statutes to apply retroactively unless
Congress explicitly states so
Read statute to preserve common law; presumption against intention to
change existing law (Johnson v. South Pacific); doesn't apply when it is clear
statute is meant to change common law

Semantic/ordinary/terms of art: dissent Scalia immediate context should Presume ordinary meaning unless term has acquired special meaning in the
trump presumption that a word means the same thing throughout the context of the statute. Nix, commercial or common def of tomato
statute SEMANTIC
Context determined by other use in statute etc. If terms of a statute understood based on judicial construction before enactment, unless statute clearly
requires a different meaning. Every word must be given effect; Unless inadvertently inserted/surplus usage. If it defeats statutes purpose , dont rely too
strictly on rules of grammar (Scrivener). Terms of art may be derived from the LH, particularly the sources Congress uses to derive the rules. Corning Glass
Rulemaking: Guided APA Agency statement designed to implement, interpret, or prescribe law or policy.
Formal RM (556-7): (Designed to ensure fairness) Provides an adversarial hearing at which agency carries the burden of proof on contested issues and
must show the rule is: 1)reliable, 2)non-prejudicial, 3)backed by evidence, 4)Record must support rule. ALS and parties participate and cross-examine
Informal RM (553): (Notice and Comment RM) - Efficiency Notice: Agency must give public notice by publishing rule in the Federal Register. Must
include time, place, and nature of proceedings, reference legal authority of the proposed rule AND must provide public with chance to comment on proposal
AND Statement: if rule is finalized agency must publish an explanation of the basis and purpose of the rule. Standard for notice-and-comment: give public
adequate time to respond, justified response to comments. Formal On the record after opportunity for an agency hearing
Adjudication: process by which agency issues an order concerns past events, applies to present can have precedential effect NOT RULE
Formal: Trial like adversarial hearing, specific party, resolve dispute/penalty. Must allow relevant parties to present evidence. Specialized cases no
ineffective RM in anticipation of all problems. RETROACTIVE APPLICABILTY: 1st impression, void in unsettles law, departure from practice, how much did
party rely on old rule, retroactive burden on parties, statutory interest in applying new rule despite burden.
Informal: no real procedures, policy through interpretive rules, general statements of policy or rules of agency organization, procedure, or practice.
Rulemaking or adjudicationChenery I: agency cannot defend order on post-hoc justification, there must be a preexisting order/rule. Judicial
review must be based on the record that was created at the time the decision was made, court cannot look beyond this.
Chenery II: Agency, as expert, should have the broad authority to adjudicate as it sees fit/ choose between rulemaking and adjudication. Adjudication is can
sometimes be a preferred method for rulemaking because of flexibility, application to individual fact pattern, etc.
Judicial Review: Overton Park: reviewing court shall hold unlawful and set aside any arbitrary, capricious, abuse of discretion agency action.
(Applies to any change) courts look at: 1)decision making process and 2)whether there has been a clear error of judgment.
Vermont Yankee- courts cannot impose additional non APA requirements on rulemaking. In the absence of other statutory requirements, agencies have
freedom to use procedures of their choosing so long as meeting minimum requirements of APA-- even if a court believes there should be more requirements
Legislative History: problem if you pick and choose and discredit the arguments you don't like; hierarchical
1) Committee Reportsbest evidence of common legislative understanding of the language of the text
2) by sponsors: courts find them weighty and authoritative because they took the lead in drafting, would resolve qs regarding statutory ambiguity
3) by floor managers: authority bc they were in charge of congressional debate on the statute; but may not have expertise on issue
4) during hearings: expresses the views of the drafters as drafters prepare what they say. But a political show, other interests influence statements
5) General floor S: individual views, not reliable/ often used: Colloquies: questions asked to sponsors about statute. Way to get to say what they want.
6) Subsequent statute history, any additions/drops? not informative, reflection of contemporary thinking not the intent of the makers of the statute
7) ratification: gov doing nothing can be reflection of their intent. However could be new congress of completely different views and members
Critiques of LH: no such thing as congressional intent, legislators have different intents/purposes. Outlier members don't reflect views of whole
congress. Committee reports are drafted by people with biased views because of vested interest in the statute (agriculture committee reps farm states)
Legs might be busy, but they cannot designate legislative power under the const. delegation would allow ppl to circumvent const required leg process
Scalia: unelected staffers and lobbysists can place phrases in legislation, can even be malicious/strategically manipulative
So much LH you can predetermine the meaning you want and then pick and choose LH for evidence instead of using LH to define meaning (Scalia/Kennedy)
Support of LH: intent of small can stand for whole bc representatives may appropriately rely on the views of the committee members in casting
their votes. language is inherently ambiguous, must look to other sources to interpret. Legislature cant foresee all possibilities, we shouldnt require them
to through rigid interpretation. Most legislators assume purposivist approach and would be more caught by surprise by pure textualist approach
CHEVRON: When a statue is clear (congress has spoken directly to the issue), agency must implement as written. BUT when the statute is ambiguous, courts
must review not based on how they would have ruled but on whether or not agency interpretation is a reasonable/permissible one.
Step 0: Congress delegate resolution of the ambiguity (explicit/implicit delegation?)? (Mead) (2) Does the agency action carry the force of law (NC)?
No force of law in interpretations contained in policy statements, agency manuals, and enforcement guidelines and if there is doubt in authority delegation.
1) policy can be changed 2)issued en masse 3)specific to one product 4)not heavily circulated 5) no notice and comment (Mead)
Skidmore respect: Pure Q of law, no deference, de novo review. agency makes a change, change must be through at least as formal a procedure as the old.
Chevron Step 1: Has Congress directly spoken to the precise issue at hand or is the statute ambiguous? If unambiguous/Congress spoken directly, follow that.
Otherwise Step 2: Use various tools of statutory interpretation, schools of thought, etc. here to figure out Congressional intent/interpret statute
Chevron Step 2: CAN DO NOTICE AND COMMENT ANALYSIS HERE TOO
- 2a) If the statue is ambiguous, is the agencys interpretation within the zone of ambiguity?
- 2b) How did the agency justify its interpretation? Is it reasonable? State Farm Hard Look may come into play here.
State Farm arbitrary/capricious: Court will apply the same standard of review to repeal of a regulation as it will to the enactment of a regulation. Any change
subject Courts must review not based on how they would have ruled but on whether agency interpretation is a reasonable/permissible one
Chevron & Substantive Canons: constitutional
avoidance canon trumps agency deference if raises a
serious constitutional question (DeBartolo); if
question raised is not too serious then Chevron can
trump (Rust v. Sullivan); question is how serious
does issue have to be?; SWA might be constitutional
avoidance or federalism
Chevron gives a great deference to agency
interpretations. Following the ruling in Mead, we first
determine if Chevron is applicable. Did Congress
authorize the Agency to issue rulings with the force
of law and did the A promulgate rule through under
that authority. If Congress enacted an open-ended
general statute, they most likely intended to give
substantial authority to the agency. As specificity of
the statute increases, it becomes more likely that
congress intended to reign in the power of agencies,
and stricter judicial review is appropriate.
If there is no proper delegation, then the
agency still might receive some deference under
Skidmore if the agency interpretation has the power
to persuade. To determine how much to respect the
interpretation you assess thoroughness of and
validity of agencys reasoning. To what degree is it
consistent, was evidence presented at a hearing, is material technical? An interpretation that is close in time the enacting of statute is given more deference.
If Chevron step zero is satisfied, we move on to Chevron Step 1. Did congress address the issue at hand, and if so is there any ambiguous? Here, we
look to the various methods of statutory interpretation and apply it to the statute itself. We also look to LH etc. If it is likely that there is enough ambiguity in
the statute such that Congress has not spoken to the issue, we go to Chevron Step 2.
Is the interpretation within the zone of ambiguity and is the agency interpretation reasonable? The threshold is not very high, interpretation does
not need to be the most reasonable; it must just be reasonable at all). However, APA 706(2)(A)/State Farm holds that the reviewing court shall hold unlawful
and set aside any agency action found to be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law Under the modern
State Farm hard review agencies must meet a strict standard for notice and comment. Agencys evidentiary records must support their actions through
a satisfactory explanation of a rational connection between facts and the choice made. Grounds for an inadequate explanation: 1) Agency relied on
factors Congress has not intended it to consider; 2) Failed to consider an important aspect of problem; 3) Offered explanation for decision that runs
counter to evidence; 4) Explanation is so implausible that it could not be ascribed to a difference in view, or the product of agency expertise. 1) Agency
must justify departures from past practices, must allow effective participation by a broad range of affected interests and give consideration to alternative
measures Here the interpretation is/is not arbitrary and capricious becauseIn addition, the interpretation is likely reasonable because
EXTRA STATE FARM: If the interpretation of the rule effects only a small group of peopleadjudication, only rulemaking for such a process, probably
arbitrary and capricious in its interpretation. Additionally, a formal procedure is less likely to be found arbitrary and capricious then an informal procedure.

President: appoint/remove. Neg power: agencies must submit to centralized reg review. Improves qual of reg and more democratic but anti-reg/pol bias
Pos influence: issue directives making actions part of larger reg schemes. facilitate action: budgetary, legislative, logistic support,