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STATUTORY INTERPRETATION

PURPOSIVISM

TOOLS

o What is the point of the statute does the interpretation further that end? (Riggs, Holy
Trinity, Public Citizen)
Judge should be partner of Congress, not facilitate grave injustices (Marshall (Posner
dissent 193-4))
If pure words seem to contradict this purpose, ok to look to other sources (often requires
checking legislative history)
o historical context (Holy Trinity (37))
o statutory structure: how do other parts of statute relate to specific provision
o statutes relationship to other statutes concerning same subject matter
compare past laws with similar intent/language to law at issue
o hierarchy of legislative history (Train House Committee Report > colloquy > individual
statements from the floor (re proposed amendment))
Committee reports
Most likely to have been read by legislators, coming from place of most
expertise
Congress assigns committees work on purpose, shows endorsement of what
they produce
Conference committee reports for reconciled bills
Statements by legislators
colloquy legislators describing scope and purpose of bill (Train)
statements from bills sponsors and committee members
statements from the floor
Say nothing about the opinions of those that did not speak
More helpful if there are several showing agreement on a contested issue
amendments
amendments with no debate: can go both ways unimportant or given weight
because Congress took specific effort to pass?
rejected amendments: can go both ways was it unnecessary or
unwise/unpopular?
changes in wording of bill/phrase/word
alteration of wording can be taken to show intent
deletions can be used to show intent, but also show that Congress considered
issue, perhaps just minor narrowing of scope
post-enactment statement of legislator (Continental Can (149))
subsequent legislative history is an oxymoron
legislative acquiescence
rarely used difficult to pass new legislation, doesnt bear on what that
congress meant anyway
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Congress reenacting legislation under an agencys interpretation is sometimes
thought to be helpful as a ratification of the interpretation
o can show that a phrase is intended as a term of art
o big consequences likely not intended by minor/cryptic language

JUSTIFICATIONS / POLICY ARGUMENTS

- Assume legislation is passed by reasonable people pursuing a knowable purpose (all laws
have a purpose)
o Legislative history is often best way to figure out purpose
o Legislative history not just a way to give judges discretion can constrain it too
- By reading spirit of law, more likely to facilitate accomplishment of statutes general
aims (what the legislature wanted to happen)
- Recognize the inability of legislation to cover all situations
- Language is imperfect
- All laws require interpretation to execute/implement pretending otherwise is
nonsensical

CRITICISMS

- Legislative history
o Legislators rarely draft actual bills
o Submajoritarian problem: only approved by a tiny minority
Art. 1, Section 1 says all legislative powers are vested in Congress not a
committee the whole thing
Acquiescence to something does not signal endorsement, especially with
little debate
o Highly manipulated, floor statements often not even spoken at all (although
written up in Congressional Record with different typeface)
Often consists of things majority couldnt get into the statute
o Laws are a product of compromise most effective interpretation isnt necessarily
accurate
Choosing a single purpose dishonors the compromises built into a bill
- Every purpose is a means to a different purpose basically picking an arbitrary level of
generality to focus on
- Has not gone through bicameralism and presentment
o Its easy to hold and announce intents/purposes, hard to pass laws
- We want to incentivize Congress to be more explicit, not less
- Scalia has okd it as a means to verify an interpretation

TEXTUALISM

TOOLS

- Just adhere to text, even if it might produce an unjust result (Marshall (191),
- title of law (contradicted by canon) (Holy Trinity)
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- how do previous statutes define a term (Casey (46), Blanchard (146))
- how is term used elsewhere in statute
- a laws omissions should be taken as intended, not filled in by court (Casey (48))
- justify finding of a terms ordinary meaning by making specific examples of its use in the
world
- how was term defined when statute was written
- how a reasonable person would have understood a term
- debates in textualism
o plain language/meaning (Nix) vs. interpret words according to specialized
meaning known by niche intended audience
Smith majority uses dictionary meaning (117), dissent (Scalia) uses
colloquial meaning, arguing its most common (120)
o consult the dictionary, divorced of context vs. consult context to find terms
meaning vs.

JUSTIFICATIONS / POLICY ARGUMENTS

- Language is the only thing thats been democratically vetted
- Skeptical of the existence of congressional intent at all. Statutes embody legislative
compromises and do not have a single, coherent purpose.
- Importance of Art. I Sect. 7 bicameralism + presentment.
- Belief: less room for judges to impose their own preferences onto congressional intent.
- There is plenty of room for debate about the actual meaning of the text itself.
- Respectful of Congress to let a bad bill lie as long as its not absurd
- Ideally, establishes a uniform system of interpretation so Congress knows how things will
be interpreted when its drafting a bill
- Judges must hew to the meaning of a clear statutory text even when result contradicts the
statutes apparent purpose

CRITICISMS

- Often relies on picking an arbitrary level of generality to focus on
- Dictionaries, canons are extrinsic, undemocratic tools should not be resorted to before
legislative history and purpose

INTENTIONALISM

- Ask first: did this problem come up in the legislative history?
- Can still draw from range of interpretive tools
- Case: Train v. CO Public Interest Research Group

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CANONS

**to be invoked only in close call situations / after other interpretive tools leave ambiguity**

SUBSTANTIVE CANONS (advance values that courts have deemed important)

- Absurdity
o courts should not make rulings that lead to absurd results that Congress couldnt
possibly have intended
o scope:
society-wide values? (Holy Trinity)
Congress members intent? (Riggs)
Congress members interests? (Public Citizen)
o Can hold something absurd because it would lead to absurd results in other
instances, but not the one being litigated (Public Citizen)
o Undisputed uses of canon:
Kirby
Classic: no one may draw blood in the streets

- Constitutional avoidance
o if there are two plausible constructions of a statute, read in a way that would not
raise constitutional Q (need grave constitutional doubt)
o Presumption: Congress doesnt intend to give unconstitutional meanings to laws
o Reasoning: Declaring a statute unconstitutional is the most power a court can
have - given separation of powers, should be wary to use it
o Can invoke constitutional avoidance even to construe a statute contrary to how
Congress wanted it construed, because thats less bad than declaring
unconstitutional
o Sometimes used to enforce nondelegation in a backdoor way
o Cases:
Public Citizen: declare a result absurd if it would violate Constitution, find
new interpretation
Gregory: if Congress doesnt show affirmative intention/clear expression,
then ok to go with other meaning
NLRB: No clear expression of affirmative intention by Congress, so dont
confront constitutional issue

- Spirit v. Letter
o Something may be in the letter of the law but not in the law if it contradicts the
purpose of the legislature.
o Ex: Holy Trinity.
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- Rule of lenity
o If ambiguities exist in a criminal statute, interpret it to be most lenient towards the
defendant.
However, not to the point of ruining intent of statute

- Federalism
o Interpret statutes to avoid interfering with state rights and autonomy
Reason: 10
th
Amendment protects state powers important constitutional
value
o If there are two permissible readings of a statute and one does not interfere with
state rights and autonomy, go with that one.
o Can apply in absence of plausible concern about constitutionality, but rarely does
o Ex: Gregory v. Ashcroft Federal Age Discrimination in Employment Act should
not be read to interfere with retirement limits for state judges.

- Odds and ends canons
o Interpret in favor of religion grounded in 1
st
Amendment freedom of religion
Case: Holy Trinity (p. 39)
o Interpret a statute to avoid internal inconsistencies
o One should not profit from ones wrongdoing
o Repeals by implication are not favored
o Nondelegation: courts sometimes avoid delegation by making a decision on other
grounds if possible
Benzene

SEMANTIC CANONS (common sense presumptions about grammar and syntax)

- Ejusdem generis (Mass v. EPA, McBoyle)
o the general language of a statute is limited by specific phrases that have preceded
the general language
o A modifier at the end of the phrase doesnt expand the definitionmodifier is
constrained by the words before it.
o Invoked when there is a catchall term involved
o Ex: Mass. v. EPA air pollution agent is controlling in the definition for air
pollutant in the Clean Air Act: any air pollution agent...including any physical,
chemical, biological, radioactivesubstance or matter which is emitted into or
otherwise enters the ambient air.

- Expressio unius (Riggs, Silvers (210))
o the expression of one thing implies the exclusion of others
o whatever is omitted is meant to be excluded
However, legislative history may suggest that items on a list are meant to
be some of many options
o useful in limiting a courts ability to legislate restricts to whats written
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o Ex: Silvers v. Song copyright act lists six exclusive rights you need to sue;
plaintiff without one of these rights did not have standing. (Dissent says the use of
this canon violates the purpose of the statute).
o Counter ex: get milk, bread, and eggs does not necessarily mean you shouldnt
also get ice cream

- Noscitur a sociis
o a word is known by its associates / figure out what a word means by looking at
the words that surround it
o idea: words take meaning from the words they are associated with
First: find general characteristic that surrounding words share
Then: apply it to word at issue in a way that doesnt make is surplusage
o Ex: Babbitt v. Sweet Home Justice Scalia in the dissent said that the word
harm is constrained by the words around it kill, capture, trap, etc.
Babbitt dissent: Stevens: canon against surplusage trumps noscitur a
word isnt constrained by the words around it if that renders those words
redundant

- Canon against surplusage
o statutes should be read to give every word a meaning assume every word was
included purposefully
o Counterargument: if words are inadvertently inserted or repugnant to the rest of
the statute, they may be rejected as surplusage

- Plain meaning (Holy Trinity (37), Nix (102))
o Words are to be given their common or ordinary meaning, unless they are
technical terms or terms of art.
Try to discern which audience statute was written for
Use context to figure this out
o Positive incentive for Congress to be clearer in writing statutes
o West Virginia: the plain meaning of the statute is the starting point for statutory
interpretation and can be used to trump legislative history
o Ex: McBoyle v. US the word airplane does not seem to fall under the plain
meaning of motor vehicle.

- Titles do not control meaning
o Look to the text of statutes, not the titles, to determine their meaning.


REGULATION

GENERAL JUSTIFICATIONS FOR REGULATION

- lack of market power for an essential good
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- public good (forcing a business to put a price on something they see as free (ex:
pollution)
- when cost of entering business is high, leading to monopoly (ex: power grid)

SEPARATION OF POWERS POLICY DEBATE

- Pro-firm separation
o careful vesting of different powers to different branches in Constitution implies
firm separation (expressio unius)
o lots of places where Constitution limits branches interference with each other
limited ability to remove and select officials of other branch
(cumbersome)
ex: impeachment of president, life tenure for judges
limited control over salaries of other branches
Incompatibility Clause prevents simultaneous multi-branch service
o Historical understanding and purpose response to failure of state govts. where
legislatures dominated
o Ambition made to counteract ambition
- Anti-firm separation
o no provision in constitution specifically says powers cannot be delegated/shared
just because powers are vested doesnt mean they cant be transferred
o plenty of examples of blending powers
ex: veto power on legislation, appointments clause, treaties

DELEGATION TO AGENCIES POLICY REASONS

- Pro-administrative delegation
o Congress does not have time to study or address the myriad issues that arise with
every statute
o Congress cannot act quickly to new information - legislative process is slow by
design and problems are increasingly complex
If Congress cant delegate broad authority to administrative agencies, it
cant exercise its Commerce Power to the extent allowed by the Const.
o Pressures of day to day partisan politics inhibit sensible application of information
o Plenty of ways for Congress to control an agency
Limit authority when writing statute
Limit power by new legislation or lack of appropriations
Limit spending in appropriations
Call heads of agency in for Congressional hearing and yell at them
o President and Senate select agency personnel accountability

- Anti-administrative delegation
o separation of powers more important than efficiency
o Idea that decisions need to be insulated from politics is undemocratic
o Lack of accountability for both agencies and legislators delegating to them

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INTELLIGIBLE PRINCIPLE

- J.W. Hampton: Congress must provide an intelligible principle for delegation to be
constitutional
o Tariff act authorizing Prez adjustment of duty rates is intelligible because it gives
guidelines to which the decisionmaker must conform
o intelligible principle requirements
defined terms
criteria/procedures to channel discretion
Limiting rather than allowing
Specific rather than broad purpose
- Court almost always says theres an intelligible principle
o One exception: Schechter Poultry
codes of competition authorization to Prez is not an intelligible principle

LEGISLATIVE VETO

- unconstitutional INS v. Chadha
o legislative veto is an exercise of legislative power that bypasses the Presentment
Clause, is unconstitutional
Presentment Clause must be respected to Prez has power to check
Congress ability to pass oppressive, improvident, or ill-considered lawsi

OTHER FORMS OF CONGRESSIONAL CONTROL OVER AGENCIES

- Appropriations
o Can attach riders to appropriations bills, make it harder for agencies to pursue
tasks Congress doesnt like
o Can just eliminate funding and destroy agency
- Checking in on agencies
o Hearings, investigations, audits, oversight committees

APPOINTMENT

- Appointments Clause (Art. II, Sect. 2)
o The President shall nominate, and by and with the Advice and Consent of the
Senate, shall appointOfficers of the United Statesbut the Congress
mayvest the Appointment of such inferior Offices, as they think proper, in the
President alone, in the judiciary, or in the Heads of Departments
- Congress cannot nominate commission members itself (Buckley)
- Principal v. Inferior
o Test to determine if inferior officer (Morrison)
officer is subordinate/subject to removal (given most weight, implicitly)
limited duties (dubious)
limited jurisdiction (serious crimes by federal officials)
limited tenure (done when job is done)
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o inferior: Congress can vest appointment in Prez, courts, or Dept. Heads
Congress can also set term limits for nominees, party proportionality, etc.
(Humphreys (453))
ex: independent counsel (Morrison)
o principal: only Prez can appoint, subject to advice and consent from Senate

REMOVAL

- Constitution does not explicitly mention removal (only impeachment)
- Implicitly lies in Vesting Clause, Take Care Clause, Necessary & Proper Clause
o See other outline for wording
- Employees with significant authority and who have the final word on something are
officers
- Congress cannot reserve for itself the power to remove an official charged with
execution of the laws (Bowsher)
- Broad (Myers) v. limiting (Humphreys)
o Myers: Purely executive officers are firable at will
o Humphreys: Mixed power officers can only be removed for cause
- Pure executive v. mixed power officers
o Pure executive: like postmaster restricted to performance of executive functions,
nothing legislative or judicial
o Mixed power: like FTC commissioner members of administrative bodies
created by Congress in regulating unfair methods of competition, performs
legislative and judicial roles
- Independent agencies v. executive agencies
o Independent removable only for cause: multiple heads, staggered terms, an
independent body of experts
Allowing Prez to remove at will would thwart Congress intent to create
an independent body
o Executive removable at will: single heads
- Morrison: purpose of removal cases isnt just to define executive v. mixed power its to
make sure that Prez is able to take care that the laws be faithfully executed per Art. II
o Test for removal restrictions: Does the restriction unduly trammel on the
Presidents executive authority?
Factors:
Does it interfere with the central functioning of the Executive
branch?
Degree of authority of office (limited jurisd./tenure)
Does restriction impermissibly burden Pres. power to
control/supervise?
Ability to remove independent counsel is not central to the functioning of
the executive branch, so doesnt unduly trammel, so not unconstitutional



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CENTRALIZED REGULATORY REVIEW

- Executive Order 12866 (p. 516)
o Clintons replacement of Reagans OMB order
o Both executive and independent agencies must present plans to OMB; only exec
agencies are required to submit CBA analysis
o Expansion of executive power
Must explain how regulation promotes Prezs priorities, tell him in
advance
Conflicts between agency heads and OMB shall be resolved by the Prez
o CBA emphasis: maximize net benefits, justify its costs, etc.
Cost-benefit analysis leading to fewer regs:
time and cost of justifying them
experimenting limited by necessity of justifying everything up
front
qualitative concerns rarely can defeat quantitative arguments, so
excluded
o What regs are reviewed (3(f)):
$100M+, create inconsistency, or raise novel legal or policy issues
(broad!)
o Agency must provide to Regulatory Impact Analysis (RIA) to OIRA (6(a)(B, C)):
Text of draft reg and explanation of how reg will meet specific need
Assessment of costs and benefits, and CBA for all reasonably feasible
alternatives
o Pros:
Prez has uniquely holistic/national perspective on regulatory questions
Allows for more coordination across agencies
Democratic accountability: we vote for prez, not regulators
Evidence doesnt show a lot of (obvious) interference with regulation
Prevents special interest groups from influencing agencies too much
Could force agencies to be more careful and efficient
o Cons:
Yet another layer of delay and added cost
Prez and OMB dont have expertise that regulators do
Order has substantial anti-regulatory bias because:
Cost-benefit analysis obstructs difficult to quantify benefits
delays and costs of compliance may cause agencies to play it safe
by adopting more modest regulations
OMB is less accountable because agencies are open to criticism from
press, where OMB is secret
Lack of transparency hard to tell what impact OIRA had on final reg and
why
Prez doesnt have time so really doesnt give a better perspective on regs


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JUDICIAL REVIEW OF AGENCY ACTIONS

THREE STEPS TO ANALYZE JUDICIAL REVIEW

1. Within legal authority (law interpretation)
a. Did agency operate within bounds of delegated discretion?
b. look at authorizing statute define terms, figure out whats authorized
2. Substantive rationality
a. Policy judgments - did agency act arbitrarily and capriciously
3. Procedural regularity
a. Did agency follow correct procedures - APA sections

GENERAL RULEMAKING NOTES - POLICY

- pro-rulemaking
o flexible, expert decision-making, insulated from mess of day-to-day politics
- anti-rulemaking
o arbitrary, non-democratically appointed bureaucrats
- pro-lots of procedure
o ensures agency has properly considered all relevant information, gives affected
parties opportunity to state views, present evidence, make arguments
- anti-lots of procedures
o expensive, slower, less flexible, chance for special interests to step in,
disempowers technical experts and empowers agency lawyers

ADMINISTRATIVE PROCEDURE ACT

- Establishes the basic default rules of procedure for federal agencies to use when
promulgating and enforcing regulations.
- Quasi-constitutional statute more dynamic than many/all other statutes
- APA can be overridden by more specific statutory directives
- Agencies can choose between rulemaking and adjudication (Chenery)
o Can devise what looks like a rule in the context of an adjudication
o These will be precedential going forward
- Rulemaking agency procedure that results in creation of a rule
- Adjudication technically defined by the APA as any agency process producing an
action that is not a rule
- How do we tell the difference? (loose distinctions, dont always hold)
o Rulemaking is future-oriented; adjudication generally focuses on things in the
past or present.
o Rulemaking is more legislative and adjudication is more executive or judicial
o Rulemaking usually does not affect instant cases; adjudication affects individual
parties
o Rulemaking sets standards and adjudication applies standards to facts
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o Rulemaking is binding on large groups; adjudication is binding primarily to the
parties under adjudication
o Rules are backbones and orders are enforcement mechanisms
o Rulemaking sets forth regulations all at once; adjudications are more incremental
- In general, courts generally accept agencies characterizations of their own actions.
- Informal v. formal

PROCEDURAL REGULARITY (PART 3)

FORMAL RULEMAKING

- Formal 556 and 557
o Adversarial hearing; rare
o takes a lot of time and effort. Agencies use formal rulemaking when statute
explicitly requires it not always clear whether this is true
- Orders = pretty much any authoritative agency action other than a rule a final
disposition, whether affirmation, negative, injunctive, or declaratory in form, of any
agency in a matter other than rule making but including licensing.
- Adjudication = the agency process for the formulation of an order. Any process
producing final agency action that is not a rule is an adjudication for APA purposes.
Typically about applying existing law or policy to some set of facts. Past-focused.
Resembles what courts do.
o Formal 554, 556 and 557
Adversarial process requiring an opportunity for oral presentation
o Informal no section provides procedures
Procedural requirements are minimal
- When a statute requires rules to be made after a hearing, it can be either a formal
or informal hearing (Florida East Coast Railway)
o Courts are less concerned with protecting peoples rights in rulemaking because it
applies to everyone; adjudications hugely affect individual parties, need more
procedure

553 NOTICE-AND-COMMENT (INFORMAL) RULEMAKING

(b) General notice of proposed rule making shall be published in the Federal Register, unless
persons subject thereto are named and either personally served or otherwise have actual notice
thereof in accordance with law. The notice shall include -
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and
issues involved.

Requirements

o NOTICE REQUIREMENTS
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o Agency gives public notice by publishing a notice of proposed rulemaking in
Federal Register with terms/substance of proposed rule
Its possible for the final enacted rule to differ from the initial proposal, in
which case no one has been able to comment on the final, legal rule.
Logical outgrowth test (Chocolate Manufacturers)
Notice is adequate if:
o Changes are in character with the original scheme
o The final rule is a logical outgrowth of the notice and
comments already given
Encourages agencies to be vague in proposed rules so changes can
all be called a logical outgrowth
o COMMENT REQUIREMENTS
Must provide the public with an opportunity to comment on the proposal
(oral hearings not required)
Comment is only adequate/meaningful if it is allowed in
accordance with Chocolate standard above and agency is not
arbitrary and capricious, such that they do not respond to valid
comments
o CONCISE STATEMENT (EXPLANATION) REQUIREMENTS
o If the agency decides to finalize a rule, it must publish an explanation of the rule
concise general statement of their basis and purpose
- A concise general statement of basis and purpose must answer all highly
pertinent issues and alternatives raised in public comments (Nova Scotia)
o If it doesnt, court will invalidate rule b/c public is essentially denied
the opportunity to meaningfully comment if comments arent
considered
o Plus, can invalidate as arbitrary under Sect. 706
o This leads to extremely long general concise statements, because
agencies dont want to risk being found to have failed to respond to a
comment
- Advantages
o Can produce better rules (through the expertise of commenters)
o Fairness affected parties should have input

553 JUDICIAL REVIEW

- Court evaluates only the rulemaking record built before the complaint was filed nothing
the agency has compiled afterward (Chenery)
- A court must consider whether an agency has taken account of all relevant factors and
whether there has been a clear error in judgment (Nova Scotia)
o Agency must disclose materials it relied upon to make a decision so court can
review the decision
o If agency provides new studies after those criticized, or generates additional data
using disclosed methodology, doesnt necessarily need to disclose
o Need not disclose trade secrets, or when agency relied on its own internal
expertise
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- Why has 553 been interpreted so expansively
o Judges are uncomfortable with agencies making important policy decisions
without strong procedural safeguards
o Favors those with lots of resources to throw at notice and comment
o Makes notice and comment slower, more expensive, less efficient

- cases
o Nova Scotia: agency failed to disclose basis for decision and answer pertinent
questions raised in during notice-and-comment period so, rule not valid

EXCEPTIONS TO 553

553(b): notice-and-comment requirements do not apply:
(A) to interpretive rules, general statements of policy, or rules of agency organization,
procedure or practice; or
(B) when the agency for good cause findsthat notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest

GOOD CAUSE EXCEPTIONS (553(b)(3)(B))

- 553(b)(3)(B) says notice and comment can be skipped under three conditions, all of
which fall under the umbrella of direct final rulemaking
o these procedures are used when agencies think there wont be any controversy
over the rules
o if there is controversy, agency will put the rule through notice and comment

- unnecessary
o unnecessary if its a routine determination, insignificant in nature and impact, and
inconsequential to the industry and to the public (narrowly applied, though)
o direct final rulemaking establishes an interim rule that incurs notice-and-comment
if it receives adverse comments
- impracticable
o emergencies when delay in implementing rule is unacceptable (ex: 9/11)
o must be temporary and simultaneously undergo rule-and-comment process while it is
in effect
- contrary to the public interest
o when advance notice of the proposed rule would prompt undesirable, anticipatory
behavior by the affected parties (ex: price control regulations)

GENERAL STATEMENT OF POLICY (553(b)(3)(A))

- can be memo, letter, speech, press release, manual, or other official declaration by an agency
of its agenda, priorities, or how it plans to exercise its discretionary authority
- Purpose: provides advance warning about how an agency is likely to resolve questions
- Sometimes difficult to distinguish between policy statements and rules
- Pacific Gas force of law test
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o force of law test
substantive rule
has the force of law only question in the proceedings is whether
the regulated parties conformed to the rule
Validity of the underlying policy is not subject to challenge
Sanctions for rule-breakers is a clue that something is a rule
Policy statement
Merely declares in advance how agency intends to exercise
discretion in future
Agency cannot rely on policy statement in subsequent proceedings
When agency applies policy statement in a particular situation,
must be prepared to support decision as if policy statement does
not exist
o agency will consider the underlying validity of the policy in subsequent adjudications.
o Has no significant, immediate impact on anyone
o Agencies can establish rules through a series of adjudications common law

- cases
o Pacific Gas: rule on prioritization did not have force of law, so was a general
statement of policy, did not need to go through notice-and-comments

INTERPRETIVE RULES EXCEPTION (553(b)(3)(A))

o Declaration of how an agency interprets an ambiguous statute or regulation (as opposed to a
policy statement, which is a preliminary announcement of future intentions)
Can be changed whenever an agency wants
o Get less deference than substantive rules because they did not go through notice and
comment
o 4 factor test to determine whether a rule has legal effect (and therefore is not interpretive)
(American Mining Congress)
most important: whether agency could enforce in absence of interpretive rule at
issue (is there already binding legal duty)
i.e. can you get from the statute to the enforcement without a middle step?
legislative gap
whether the agency has published the rule in the Federal Code of Regulations
whether the agency has explicitly invoked its general legislative authority
whether the rule effectively amends a prior legislative rule
o How to tell between substantive rules and interpretive rules
Substantive
Goes beyond the text of the statute
Based on specific statutory provisions
Specific and/or arbitrary
Interpretive
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declaring agencys understanding of what a statute requires
based on agencys judgment as to how to best implement a general statutory
mandate
concerns about agencies exploiting interpretive rules to avoid notice and comment
(Hoctor)
perhaps the important question is the level of precision in the original statute or
regulation that the agency is allegedly interpreting

Cases
American Mining Congress: Program Policy Letters classifying chest x-rays
are interpretive rules because they dont set forth new legal duties or rights,
so ok not to go through notice-and-comment
Hoctor: 8 fence requirement is a substantive rule, not an interpretive rule,
because its arbitrary, not explanatory should have to go through notice-
and-comment

ARBITRARY & CAPRICIOUS REVIEW (PART 2)

APA 706

The reviewing court shall-
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;

2 TESTS ETHYL (MORE PERMISSIVE) AND STATE FARM (SLIGHTLY STRICTER).
GO THROUGH BOTH, LEAN ON STATE FARM.

- Several methods of determining whether arbitrary and capricious
o Not A&C if it has a rational basis in the evidence (Ethyl majority)
A reasonable person/agency could have come to that decision based on the
record
Deferential standard presumes the agencys decision is valid unless
evidence shows otherwise
o A&C if the agencys reasoning is not a complete logical chain (Ethyl dissent)
Courts cannot fill in links in an agencys reasoning
o A decision is not arbitrary and capricious if the agency used reasonable
procedures
Concern about judicial overreaching in substantive review because judges
lack technical expertise.
RESPONSE: judges often acquire technical knowledge to decide cases
(i.e. patent cases). Why not here?
- Courts cannot require agencies to use more procedure than is required by APA or
governing statute (Vermont Yankee)
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o Agency can handle any issue or subissue with any procedure it chooses, as long as
ultimate decision is made in appropriate procedural venue

HARD LOOK REVIEW (STATE FARM)

- Supposed to be deferential main emphasis on agencys process of reasoning
- Court needs to educate itself on scientific and technical matters to enable itself to decide
whether the agency decision is A&C (State Farm)
o Unofficial test
Did the agency entirely fail to consider an important aspect of the
problem?
when agency fails to address a significant criticism of, or proposed
alternative to, the agencys final rule
Did the agency rely on factors Congress did not intend it to consider?
many statutes implicitly or explicitly supply factors that the agency
is supposed to consider, or is forbidden to consider
rule must be justified in terms of the particular objectives in the
authorizing statute
Did the agency offer an explanation for its decision that runs counter to
the evidence before the agency or produce something totally implausible?
decision is so implausible that it could not be described to
difference in views
- Courts must engage in a searching and careful substantial inquiry into the facts

- If passes above test, highly deferential review because of notice and comment (State
Farm)
o Questions to consider:
does a rational basis exist for the agencys decision? (aka was the decision
clearly erroneous?)
did the agency consider all the relevant factors?
o A decision of less than ideal clarity will be upheld
o Court cannot substitute its own judgment
- Agency action can be arbitrary and capricious even when decision would come out the
same way under better analysis

- Pros of hard look review
o Constraint on administrative arbitrariness.
o Ensures that agency decisions are based on legitimate considerations
o Reduces cognitive biases
o Mitigates the influence of special interest groups
o Generalist judges can acquire the technical info they need
- Cons of hard look review
o Judges do not have the requisite technical background to properly evaluate the
evidence/arguments.
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Generalist judges likely to misunderstand issues and make bad decisions
on the merits.
In practice, judges are overly likely to strike down agency action despite
deference.
o The reasons offered in official agency statements often bear little connection to
the actual process of agency decision-making.
o Hard look review substantially increases rulemaking costs.

DOES AGENCY HAVE LEGAL AUTHORITY (PART 1)

APA 706

To the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law and interpret constitutional and statutory provisions.

The reviewing court shall-
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;

Pre-Chevron precedent

- Pure v. Mixed questions of law (Hearst)
o Pure Q of law: de novo review (ex: does statute incorporate common law
definition of term)
o Mixed Q of law and fact: deferential review (ex: what is the terms definition as
used in the statute)
- Where the question is one of specific application of a broad statutory term, the reviewing
courts function is limited
o Agencys interpretation accepted if it has warrant in the record and reasonable
basis in law

SKIDMORE

- In absence of clear definition (on mixed questions of law and fact), courts should apply
Skidmore deference
o contemporaneousness an agency interpreting a statute shortly after it was passed
is more familiar with its intent/meaning
o made through rulemaking or binding order from adjudication procedure is a
proxy for the agency taking care
o if agency is changing its mind, less deference
o if decision is very consequential, less deference (vs. interstitial more deference)
o if decision is technical/complicated, agency has expertise, so more deference
o if Congress hasnt interfered, more deference (minor factor)

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CHEVRON

- where Congress has been ambiguous, lean toward delegation
o however, the agency can only choose a statutory interpretation thats within the
zone of ambiguity
- Step 1: Has Congress spoken to the precise question at issue? (de novo)
o If Congress is silent, proceed to step 2
o To decide step 1, use traditional tools of statutory interpretation
o If Q is resolved at step 1, it is resolved permanently
o Resolving at step 1 can be seen as democracy forcing
- Step 2: Uphold the agencys position if its interpretation is reasonable (deferential)
o Considerable weight should be accorded to an executive departments
construction of a statutory scheme it is entrusted to administer
o If the agencys choice represents a reasonable accommodation of conflicting
policies that were committed to the agencys care by the statute, it gets a lot of
deference
o Take into account:
Legislative history
Statutory text in context
Agency had a good explanation for the decision
Other statutory interpretation tools
If concerns policy/wisdom of agency, courts should just defer, because not
their arena
o If Q is resolved at step 2, it is only resolved for that case. Agency can come back
with a different interpretation later and it will be accepted as long as its
reasonable.
o Sometimes not as much deference given when a huge issue is being decided
preference for democracy forcing on big issues

- Pros of Chevron
o More weight to agency expertise
o Democratic accountability
o If Congress has not spoken clearly, agencies are in a better position to know what
it meant than courts
- Cons of Chevron
o Court interprets Congress silence as a delegation to the agency, but maybe
Congress wouldnt want the agency to interpret statutes
However, it doesnt make that much sense for Congress to tell agencies to
do stuff without giving them power to make rules/laws
o Chevron creates an easy way for Congress to defer to agencies
We worry that Congress will try to punt difficult questions
This might be why the Court made the decision it did in FDA even though
the agency had textual authority to regulate tobacco
The counterargument to this criticism is that Congress has already
deputized agencies to make rules and solve problems, so it is a natural part
of their role to interpret statutes and do things
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o Some say Chevron takes power from the courts and gives it to agencies
Agencies arent very responsive to democracy but neither are courts,
which is why this isnt a salient critique

- Other Chevron policy notes
o Benefits of de novo review
Separation of powers, consistency
o Benefits of deference to agencies
Pragmatic/efficient, accountability, predictability
o Distinction between step 1 and step 2 is illusory
Courts will apply more or less of the statutory interpretation tools to solve
case in whichever step they prefer
o General conclusions from class
if you need to use canons in a complicated way, that probably implies that
you should proceed past Chevron Step 1
You cant implement something without interpreting it Congress
understands and approves of agency interpretation because it is necessary
agencies should get deference

- Chevron in cases
o Brown: pure step 1 analysis, drug does not encompass tobacco because FDA
could not fulfill the mandate of the statute if it tried to regulate tobacco, and
Congress wouldnt force FDA to do something impossible
o MCI: modify was clear in statute, agency misinterpreted it no deference, over
at step 1
dissent: Modify is at least ambiguous should get to step 2
o Babbitt: harm is ambiguous, but agency interpretation was reasonable (step 2)

CHEVRON VS. SUBSTANTIVE CANONS

- constitutional avoidance
o when Chevron and constitutional avoidance conflict, constitutional avoidance
wins (DeBartolo - handbilling)
as long as the alternative interpretation is not foreclosed by the language
of the statute or the legislative history
do this even at step 2 (when deference is usually due to agency)
o Alternative view: when agency interpretation seems to clearly match the intent of
Congress, it can be considered reasonable even if it raises constitutional questions
(Rust funds prohibited from abortion activities)
Rehnquist: it was likely that any set of regulationswould be challenged
on constitutional ground. While they are not without some force, they
do not carry the day.
- federalism
o less absolute, but agency interpretations that raise serious federalism questions
should be given less deference (SWANCC stops at step 1, different interpretation
available for navigable waters)
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Congress should make a clear statement if it expects agency to impede on
state powers
Especially prevalent in commerce clause cases, in which SCOTUS has
started to roll back the definition of interstate commerce a bit
Rehnquist stops at step 1, solves it there to kill problem immediately

CHEVRON STEP ZERO

New Chevron test: agency legal interpretations should be given deference if they have been
given power by Congress to speak on the issue, exercised that power, the statute is unclear, and
their interpretation is reasonable. If not given deference, go to Skidmore (this is a higher bar to
clear than Chevron step 2).

- Did Congress intend to delegate authority to the agency generally to make rules carrying
the force of law? (Mead)
- Was the agency interpretation claiming deference promulgated in the exercise of that
authority?
o Not necessary for Chevron deference can be other indications that Congress
intended to delegate.
o However, agency actions in informal orders are probably not in Chevron land
(and vice versa).
o Not strictly dependent on procedural formality, but its a good proxy
- Even if Chevron doesnt apply, an agency action may still deserve some respect per
Skidmore deference factors
- Mead contradicts Chevrons presumption of agency deference from the start
- Practical effects of Chevron Step Zero requirement
1. Substantial increase in notice + comment
agencies attempting to get Chevron deference)
Leads to a lot of probably unnecessary procedure
Counterargument: thats actually a good thing notice + comment means
more thought, more outside input, better decisions overall.
2. Total confusion in the lower courts and agencies (b/c this is more of a
standard than a rule).
3. Ossification of chunks of statutory law.
Forcing judicial determination in step 1 rather than deciding on
reasonableness of agencys action in step 2 means issues are settled
forever
4. Chevron overruled Skidmore, now we go back to Skidmore if doesnt clear
Mead test
Chevron never overruled the Skidmore reasoning.
- we cant presume that Congress wants all agency decisions to be entitled to incredibly
high levels of deference
o It must be something they are authorized to speak on (probably their authorizing
statute) and it must be in a form of speech that Congress would want the courts to
respect
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o agency power needs to be checkedChevron is one way that courts check
agencys power and try to make them comply with Congress intent