fFULL LEG REG OUTLINE

Fall 2017
I. CHAPTER 2 - THE COMMON LAW AS A REGULATOR REGIME
A. Limitations of Tort Law (81-91)
1. Examples of how tort law regulates, manufacturer’s responding to tort law
a. Winterbottom v. Wright (history)
i. Rule: Manufacturers at this point couldn’t be liable to consumers/others users of products if they
were not in contractual privity (contracts cannot impose obligations to third parties) with the
manufacturer.
ii. You had to have a specific contract to be able to sue for product failure
2. Macpherson v. Buick Motor Co.
a. Man driving car had wheels crumble beneath him, P sues manufacturer for negligence, under
Winterbottom no liability. Cardozo overrules, manf. Owe a duty of care.
b. Liability of a manufacturer for the finished product, D was not absolved from a duty of inspection
because it bought the wheels from a reputable manufacturer
3. Rotche v. Buick Motor Co.
a. P driving a car, gets into accident, found pieces missing, after company had inspected it before selling
it.
b. Common law encouraged a manf. To do something to protect itself from legal action (inspection)
4. Criticism of tort law as a regulatory regime:
a. “Dog law”: companies are punished for rules they didn’t know they needed to follow
b. Does not respond to prospective or non-conventional Ps: A river can’t sue for being polluted and
future grandkids can’t sue.
c. Under inclusive: might miss some things we want to regulate, lots of people end up not being
helped. Issue of risk
d. Retrospective v. Prospective: Court rules are retrospective, giving parties somewhat of a windfall.
But statutes only apply to prospective (future) conduct.
e. Reactive not Proactive: courts can only address issues when a case is brought before them, courts
cannot reach out to parties to prevent an injury.
f. Uncertainty: Tort laws are decided piecemeal by state, but federal laws/regulations apply uniformly
in all jurisdictions.
g. Institutional competence: Judges are generalists who are not informed about particular complexities
of industries at stake. They are ill suited to redesign car safety systems from the bench. They’re an
adversarial system, not information gatherers. Agencies have a variety of experts of various parts of
the industry; legislatures can hold hearings, consider consequences, call witnesses, and obtain
documents.
h. Political accountability: judges are insulated form party politics and are less responsive to public
opinion. Agencies can communicate with party leaders, negotiate political tradeoffs. Counter:
bureaucrats may not have the public interest in mind because they want to go back into private sector.
i. Parties v. interested participants: Adjudication restricted top arties in case. Narrow opportunity to
get called as a witness or file amicus brief. Agencies have an obligation to solicit and consider the
views of all interested parties.
B. Justification for Regulation (98-115)
a. Economic Theory
i. Notion of market failures, sometimes the market (reinforced by common law), will not supply
consumers with their preferred option.
b. Democratic Theory

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 i. Idea of social justice of welfare: sometimes people will demand more for society than any
individual will seek for herself as a consumer.
1. Economic Justifications, Market Failures: Explains why citizens cannot protect themselves
through the force of supply & demand.
a. Stephen Breyer Regulation and Its Reform
i. Justification arises out of an alleged inability of the marketplace to deal with particular
structural problems.
b. Normative Reasons for Regulation
i. Information Asymmetry
 Consumers need sufficient information to evaluate competing products, getting the
access to information, actually being able to use that information to your advantage
ii. Cognitive Bias - Optimism Bias
 People generally have a higher opinion of themselves, think the risk won’t happen to
them
 Bad risk assessment - People believe underestimate high risks and overestimate low
risks
 Ex. I am scared to fly (low chance of getting hurt) but I have no issue driving in traffic
every morning (high chance)
iii. Collective Action Problem - Free Ride Problem
 People that hope to benefit at no cost to themselves,
 Adjudication dependent on private initiative. Many things might be important, but de
minimus, or potential P might prefer not to sue (negative value lawsuit). Agencies
have public resources to devote to the problem.
b. Economic Reasons for Regulation
i. Monopoly Problem
 Single entity controlling a market, lower supply, higher prices
 Monopolies need to be regulated because of driving up prices, income transfer
(transfer $ from users to investors), fairness (recourse for grievances) and power (fear
concentration of substantial power).
ii. Destructive Competition
 companies consistently undercutting one another in order to stay afloat, thereby
producing lack of quality
iii. Externalities (Spillover Costs)
 a side effect or consequence of an industrial or commercial activity that affects other
parties without this being reflected in the cost of the goods or services involved, such
as the pollination of surrounding crops by bees kept for honey.
 External effects of production, consumption which the price does not reflect,
Unregulated price of a good does not reflect the true cost to society of producing that
good
 Costs (or benefits) not paid for by X – but paid for by Y, X doesn’t consider these
costs in rationalizing behavior
 Society pays more for greater waste
2. Social Justifications for Regulation (115-123)
a. We may aspire to certain norms of conduct for our own sake, Public Interest Era, Rights
Revolution – spike in legislation in multiple areas: employment discrimination, environmental
quality, consumer protection and occupational safety.
b. Cass Sunstein, After the Rights Revolution Reconceiving the Regulatory State
i. Collective Desires & Aspirations

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  “preferences about preferences”, deliberate process, disjunction between political
process & consumption choices (political self – what you say you want vs. consumer
self – what you actually do)
 Ex. Willingness to pay/accept
ii. Social Subordination
 Regulatory statutes that attempt to eliminate/minimize social subordination of various
social groups. Discriminatory attitudes.
 Ex. Equal Pay Act, Civil Rights Act of 1964, etc.
iii. Irreversibility, Future Generations, Animals, and Nature
 A certain course of conduct, if continued, can lead to an outcome from which current
& future generations will not be able to recover.
 Ex. Endangered Species Act
iv. Ability to Pay
 Consumers have to be able to pay for the safety they want
v. Paternalism: Even though consumers are given adequate information, some argue that
nevertheless they will make irrational decisions and that therefore regulation is needed. The
govt. supposedly knows better than individuals what they want or what is good for them.
Distrust of the ability of the purchaser to choose is based on the alleged inability of the lay
person to evaluation information.
c. From Justification to Legislation: A Note on the Role of Politics
i. Economic & social justifications for govt. regulation can play a role in the shift from the
common law to the regulatory state.
ii. Some suggest that congress is motivated to enact a statue whenever that statue serves the
self-interest of a majority of legislators
 Public Choice Theory: holds that legs., no different than any other rational actors, take
actions that serve their own self interests, they want to be reelected.
II. CHAPTER 3 – LEGISLATION
A. Legislative Process (125-136)
1. A General Description
a. For a bill to become a law, needs a majority approval in both houses of congress (bicameralism) and a
presidential signature (presentment)
b. House: 435 members with two-year terms, “rule bound”, contains a rules committee, creates budget for
bills
c. Senate: 100 members with six-year terms, power to approve/deny pres. appointees, discussion not
limited til cloture, responsibility of impeachment trials and approving treaties.
d. Steven S. Smith, The American Congress
i. Introduction
 Can be drafted by anyone, Congressman must introduce the bill the can do this by
introducing their own bill, incorporate it into another or offer it as an amendment.
ii. Committee Action
 Head of the body of congress refers the bill to the appropriate committee(s), then to
subcommittee (senate doesn’t have to, house does), bill can die here if no action is taken
by the committees.
 Hearings - public forum which shows strengths & witnesses of a proposal (not required)
 Mark up- public meeting where committee members consider changes to the proposal (
 In House the Rules Committee decides on bill
1. Open Rule – open to amendment
2. Closed Rule – not open to amendment
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 3. No rule – kills the bill
 No rules committee in the Senate
 Subcommittees can do this on a smaller scale before it is considered by the full committee
(they cannot report
iii. Calendar & Scheduling – list of bills eligible for floor consideration
 House – Majority leadership decides the schedule, or go to Rules Committee to start the
process of bringing a specific bill to the floor for lengthy consideration and possible
amendments
 Senate – Motion to proceed (debates motion, vote, begin consideration), or unanimous
consent (senate take up the bill, no objects? -> consideration)
iv. Floor
 House – Suspension of the rules (limited debate, no amendments, 2/3 majority required for
approval) or Special Rule (by the House Rules Committee, selection of text, limits on
debate/amend., germane subject matter – considered for 1 hour, then voted on, if passed
then they consider the bill under the terms specified terms), -> Committee of the whole
(not the whole floor allows member an efficient way to consider & vote on amendments,
then approval) -> House floor (Com. Gives summary, debate) -> Motion to Recommit
 Senate – Unanimous Consent Request (agreements, like a Special Rule, limit
consideration, must be agreed by all) or Motion to proceed -> propose amendments. No
debate limit, no simple majority to move to final vote. Filibuster (extended debate to
delay/prevent a final vote). Few options to limit amendments, can have subject matter
unrelated to the bill. Cloture (super majority can move to end debate on an issue, limits
amendments) after consideration -> final vote
v. Conference – resolve differences between the houses
 Must be agreed to in both chambers in the same form. Chambers can attempt to amend
the others bill. Reconciliation & compromise.
vi. (agreement about a singular bill) Presented to the President to become a law, if signed. If it is
vetoed -> back to the floor.
vii. Once signed by the President it becomes a law that is codified into the U.S. Code
e. Notes & Questions
i. Vetogates: ways to kill/derail a bill, can happen in any part of the process except introduction
ii. Legislative History: key moments in the legislative process, documents or statements produced
throughout the process, produced in committee reports and presidential singing statements
iii. Omnibus Bills: massive bills, compilations of many disparate bills, throw in anything to kill a
bill (senate)
f. Notes on Theories of the Legislative Process
i. Public Choice Theory & the Role of Interest Groups
 Legislators act in ways that will maximize their reelection, Statutes reflect the self-interests
of well-organized groups that prevail upon Congress to enact them.
 Behave as any rational economic actor that seeks to maximize personal utility
ii. Social Choice Theory & the Problem of Cycling
 Social Choice: the study of collective decision processes and procedures. It is not a single
theory, but a cluster of models and results concerning the aggregation of individual inputs
(e.g., votes, preferences, judgments, welfare) into collective outputs (e.g., collective
decisions, preferences, judgments, welfare). How can a group of individuals choose a
winning outcome?
 Emphasize the rules & procedures
 Cycling – multi member body has three or more options will do this if the options are voted
on in pairs. Trying to avoid this, need some mechanisms for decision making.
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 iii. Positive Political Theory & the Role of Institutions
 Looking at how elected officials make decisions about their stance
 Game theory – legs. Seek to make sure their preferences are reflected in their legislation
but realize that they are not the only player. Need to look for the majority.
 Median Legislator – refers to the legislators in the middle necessary to secure majority
support for legislation.

2. A Specific Example: The Story of Auto Safety Legislation

a. Growth of American auto industry, rising number of casualties from MV accidents.
b. Ribicoff pushes for safety regulations, Nader garners public support with book, GM tried to put some
dirt on him but it failed and exposed them.
B. The National Traffic and Motor Vehicle Safety Act of 1966(142-158)
1. The Act

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 a. Made deadlines/cutting off points, limited different standards from states, exceptions for state vehicles
b. Roles of the Secretary – sets standards based on what is reasonable, advisory council
c. Petition for those adversely affected, restrictions, consequences for non-compliance
2. The Senate Report No. 1301 (159-166)
a. Summary of the NTMVS act, safe driving will not be 100% effective, some accidents will still
happen, Focus on the “2nd collision”
b. Judges use it to get a better understanding of the statute and to interpret words/meanings
c. Self-regulation of companies fails bc of information asymmetry & collective action problem
C. The Structure of a Modern Statute (166-183)
1. Parts of a Statute:
a. Title: formal name
b. Enacting clause: to proclaim the fact that the statute has became a law
c. Short titles: acronym, nickname, Popular Name, could be name of agency/person who made it
d. Statement of purpose, preamble, and findings: intro info, factual material, findings, background,
"Congress finds/found..."
e. Definitions: optional, operative language, "referred to as…", Shorthand references to organizations/to
repeated provisions, Increased precision - words with specialized meanings
f. Principal operative provisions: <3 & soul of the statute, what the statute is trying to achieve, impose
prohibitions, encourage/discourage certain conduct, impose requirements, "in restraint of…,
offsets/credits..," authorizes an agency to determine prohibitions/set the reqs. To which actors are
subject
g. Subordinate operative provisions and expectations: provisions secondary from the principal ones,
support secondary objective, includes exceptions, "Nothing in this section shall be construed…"
h. Implementation provisions: enable the statute to do what it purports to do, taking action to make a
statute work, "criminal sanctions, penalties"
i. Specific repeals and related amendments: repeal/amend another existing federal statute,
j. Preemption provision: bars application of state law, Constitution is the supreme law of the land,
k. Savings clause: preserves application of state law, relationship between federal & state law,
"compliance with fed. Regs. Is not a defense to X under state law."
l. Temporary provisions (if any): limited duration provision
m. Expiration date: expire or "sunset" on a specific date, exception not the rule
n. Effective date (if different from date of enactment): indicating the starting date, (statutes that apply to
conduct that occurred before the enactment date are retroactive, rare tho)
2. Note on the Relationship Between Operative & Implementation Provisions
a. Not always separate
3. Note on Preemption Provisions, Saving Clauses & Federalism Issues
a. Congress often enacts regulator statutes in areas where states already have regulatory statutes &
agencies
i. Cooperative- Federal statutes often enlist or authorize the federal agency to enlist state
agencies to implement the statute or its regulations
ii. Competitive- Federal statutes preclude state agencies from exercising any control over an area
b. Implied preemption – compliance with both state & federal laws is impossible, Courts are generally
reluctant to do this bc federalism issues
4. Different Acts & Their Purposes
a. The Sherman Antitrust Act: Contracts or engaging in conspiracy resistant to trade or commerce
between U.S. states or with foreign nations is illegal.
b. The Mann Act: Suppression of white slave sex-trafficking, reporting requirement, “immoral purpose”
was very unspecific so it was used in a variety of ways
c. The Truth in Lending Act: Informed use of consumer credit, required disclosure of terms and costs
which standardized the manner in which costs associated with borrowing are disclosed.
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 d. The Clean Air Act: implemented air quality standards, federal regulation looking towards the states
for implementation
e. The Telephone Consumer Protection Act: protection of residential telephone subscriber’s privacy
f. The Dodd-Frank Wall Street Reform and Consumer Protection Act: promote the financial stability of
the United States by improving accountability and transparency in the financial system
D. Specificity & Delegation (183-193)
a. Degree of specificity used in writing a statute determines how much authority congress delegates to
the implementing institution. Congress can be very specific which gives them total control but if it
back fires its all on them.
i. If Congress chooses to delegate, it also has a choice among implementing institutions. Should
an agency issue specific rules or should a court, in the course of deciding a case brought by a
private party, determine such rules?
b. Specificity & Delegation: Congress has a choice whether to write relatively specific rules or
relatively general principles in the operative provisions of its statutes. When Congress chooses not to
write specific rules, it delegates that responsibility to another actor.
c. When congress forgoes specificity, the result is a delegation of authority. (agencies, courts or both)
They use vague language that can be interpreted.
i. Transitive – Statute that applies directly to citizens & that a court implements
ii. Intransitive – Does not apply directly to citizens
d. Standard v. Rule
i. Standard – subjective, not very specific
ii. Rule – can be violated, concrete
1. The Constitutional Limits of Delegation
a. Argument against: Congress is vested with legislative power and cannot delegate that power
to other institutions
b. Supreme Court has only upheld that twice, otherwise they see that it is unavoidable given the
demand it would put on congress.
c. Court allows congress to delegate to agencies as long as Congress provides an “intelligible
principle” on which to base the regulation
i. Language in an operative provision of a statute that provides the agency some
guidance on its mission.
ii. operative provisions that guide and restrain agencies power
d. Costs: congress loses control (but maintain oversight), delegation requires more oversite
which is time consuming
i. Information costs: gather & analyze data; the problem of expertise, time &
resources; plus, some information only becomes available over time.
ii. Procedural costs: Congress needs bicameralism and presentment, and consensus is
more difficult the more specific the details of a statute. It is better able to engage in
vote trading and logrolling the less specific the statute.
iii. Credit claiming/blame shifting: Congress can enact general terms, and claim
success with the public for its efforts while shifting the blame for unpopular details to
the agency.
iv. Caveat: Note that delegation comes with a built-in problem. Congress wants policy
that tracks its preferences – or rather, the preferences of its most powerful
constituents. Why? According to public choice theory and the rational actor model,
legislators want to keep their jobs. Assuming that they want to secure reelection, they
must deliver policies to those groups that can help. But delegation means that
someone else sets policies – agencies, even the President. So, when Congress

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 delegates, it must monitor agency action to ensure that such action roughly tracks
legislative preferences.
2. The Political Reasons for Delegation
a. Epstein & O’Halloran
i. Reasons: expertise, time (congressmen would rather spend time on getting reelected),
cost (congress pays more research costs than agencies without the expertise),
Responsibility (blame deflection)
ii. Need expertise in certain areas, Congress does not know everything
iii. Higher level of conflict, less delegation (bipartisain govt.)
iv. Unified govt. – more delegation (more trust)
v. Jumble of factors -> independent agency, insulated from the President’s control.
vi. Congress delegates authority to the executive -
 The closer are the preferences of the Executive to the median floor voter, so that
divided govt. leads to less discretion;
 The higher the level of conflict between the committee and the median floor
voter, so that committee outliers lead Congress to delegate less authority; and
 The more complex is a policy area.
vii. Make predictions about when this balance leads to more delegation and less
specificity. They identify three circumstances:
 Complex Issue: Congress is likely to delegate more authority to agencies when
an issue is complex because the costs of specificity are so high (both time and
expertise).
 Unified v. Divided Government: Congress is likely to delegate more authority to
agencies when the same political party holds the White House because
monitoring costs decrease. The President will not allow agencies to pursue
policies that vary dramatically from Congress’s.
 Representative Committee v. Outlier Committee: Congress is likely to delegate
more authority to an agency when the committee responsible for the bill might
have imposed specific policies that diverge from more general legislative
preferences.
3. Normative Implications of Delegation (193-200)
a. Schoenbrod: Congress has no accountability, delegation = delegating responsibility &
avoiding blame
b. Marshaw: We elected the president and agencies who are delegated tasks will try to please
him, so we are still represented.
i. Blame shifting is wrong bc there are limits on how specific congress can get.
ii. Experts are limited bc of the consensus opinion of community that they are apart of
c. Rubin: Delegation is how the legislature exercises its power
d. Bressman: New delegation doctrine, imposes restraints on congress transferring law making
authority but still allows agencies to select their own standards.
E. Legislative Drafting Strategies & Techniques (200-222)
1. The Basic Steps of Legislative Drafting
a. Dickerson: Know specific objectives and getting the significant relevant facts,
i. Know related law about your topic, draft as a team, outline, know your audience, pay
attention to detail
ii. Vertical approach (divide into parts, tackle from one to next),
iii. Horizontal approach (work on ideas that overlap to ensure consistency)
iv. Drafting on the high – tentatively complete draft, send it to someone higher up to
improve draft how they want it

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 b. Legislative Drafting Manual
i. Organize a draft by keeping it brief, present tense verbs, active voice, precise nouns,
same meaning words, define terms, focused
c. House Legislative Counsel’s Manual
i. Organize with most important thoughts, present it carefully word choice to get idea
clear across to the audience
2. The Political Realities of Legislative Drafting
a. Nourse & Schacter: Case study of drafting in the Senate Judiciary Committee
i. Ideas for new legislation comes from a board array of contexts (newspapers, court
cases, lobbyists, etc.)
ii. Multiple drafters: staffers, senators, lobbyists, legislative counsel
iii. Include ambiguity to leave interpretation up to the courts
III. CHAPTER 1 – AGENCIES IN THE MODERN FEDERAL GOVERNMENT
A. Agencies
1. Unit of government created by a statute or the president
2. Agencies conduct research and possess the power to act with the force of law by issuing rules and
orders
3. Quasi-legislative, quasi-executive and quasi-judicial
4. Statutes delegate to agencies significant decisions of social & economic policy
5. Organic Statute: the statute that gives the authority to the agency, can be multiple
B. Where Agencies fit in the Constitutional Structure
1. No article specifically talks about them, mentions principal officer
a. Article I – grants power in Congress
i. Section 8 – power to lay & collect taxes, pay debts, etc. Regulate commerce with other groups.
Tribunals. Make all laws necessary and proper for carrying into Execution the foregoing Powers.
ii. Created by Congress … Congress delegates authority to agency .. and Court has upheld
delegation so long as delegation contains “an intelligible principal”
b. Article II – grants power to President
i. He may require the Opinion of the Principal Officer heads in each Executive Dept., advice &
consent of senate, shall appoint … all other officers not herein otherwise provided for, may
invest in Congress for the appointment of inferior officers
ii. Not provided for in the constitution … other than Officers of the U.S.
iii. Section 3 – he shall take care that the laws be faithfully executed
c. Article III – grants power to the Supreme Court & inferior courts
i. Judicial power extends to all cases…
d. Separation of Powers
i. Not explicit, Ex. Pres’ power to veto, sign, etc.
ii. Leg branch in Exec. -> confirms nominations
iii. Leg in Jud. -> confirmation of judges
iv. Jud. In Exec -> impeachment of pres, indictment has to be approved by HoR, Senate holds the
trial, senate is the voter, Chief Justice of US is judge
2. Principles of Agency Functionality
a. Expertise – possess institutional competence, access to board range of info.
b. Fairness & Rationality – subject to additional constraints imposed by Due Process, Administrative
Procedure Act provides oversight (formal action – trial type hearing, informal action – NCRM)
c. Interest Representation – acting through process open them up to wide range of interests, form of
rep., affected parties notice
d. Political Accountability – they can be seen as accountable to the people indirectly,

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 e. Efficacy and Flexibility – implement policies that are preferred or needed when gridlock grips
congress
f. Coordination – coordinate with other agencies
g. Efficiency – efficient regulations, CBA
C. What Do Agencies Look Like?
1. Executive-Branch and Independent Agencies
a. Congress must decide if an agency will be executive or independent
Independent Agency BOTH Executive Agency
- Under control of - Subject to APA - Under control of Pres,
Congress & judicial controls agenda
- Heads: For-Cause review - Sing Heads: At-Will
removal (more - Congress Removal (Pres. has direct
insulated from Pres.) decides budge control over)
- Bi-Partisan Req. in separate - Informal partisan make
- Multi-member statute up (changes with
commission w/ explicit - Give authority administration)
bias bi-part^ via statute (no - Pres. appoints heads w/
- Fixed terms inherent advice & consent of
- Pres. has less control, power) Senate
chairmen fired for - Similar - Single head
good cause only (if operational (admin/director)
they violate standards structure once - Change with new Pres. if
set by agency) you get below they want
- Pres. can appoint new highest level - Must clear leg. w/ OMB
chair, with advice and - Political & submit proposed rules
consent of senate, but appointees by to OIRA (subject to
old chair stays till end the Pres require review & planning)
of term unless for advice & - No fixed term
cause removal consent of
- Good option for Senate - Ex. USDA, DOC, DOD,
delegation if Congress - Both have FDA, NHTSA, FBI,
if worried about cost experts in their EPA, DOT
of specificity or about field
Pres. influence - Both subject to - Can be established by
- Enacted by a statute the OMB executive order & statute
- Are NOT subject to planning
review by the OMB mechanism
- Ex. CFB, FTC, CIA,
FCC, NLRB, GAO,
ICC, OSHRC, SEC,
CFPB
2. Constitutionality of Independent Agencies
a. Myers v. United States (functional analysis)
i. Postmaster (executive agency) was removed by a Pres. however, according to a statute,
originally appointed to a 4-year term and could only be removed before the conclusion of that
term by the advice & consent of Senate.
ii. Issue: Whether, under the Constitution, the President has the exclusive power of removing
executive officers of the United States whom he has appointed by and with the advice and
consent of senate?

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 iii. Taft held: The statutory requirement of Senate consent is invalid for the reason that, under
Article II, the President's power of removal of executive officers appointed by him with the
advice & consent of the senate is full and complete without consent of the senate.
 Taft says the Pres. Is better fit to remove heads from office than Senate, this speaks to the
compatibility of someone in an executive agency
iv. Holmes Dissent: Congress gives life to the agencies, so they determine how they operate
v. Brandies Dissent: Constitution does not limit Congress’ role in removal, only the Pres.
vi. Takeaway: Unitary executive branch of government: president at top, people below are his alter
egos and thus he can dismiss at will
b. Humphery’s Executor v. United States (formal analysis)
i. A member of FTC (Indpt agency w/I Exec. branch), according to organic statute, was appointed
by Pres. and could be removed by Pres. only for good cause.
ii. Issue: Whether this act limits the Pres. removal to people for cause and if so does the constitution
accept that limit?
iii. Holding: No removal can be made during the prescribed term for which the officer is appointed,
except for the good cause reasons stated in the statute.
iv. Distinguished from Myers: FTC was a body created by Congress to perform quasi-legislative
and judicial functions.
v. Takeaway: need to limit the Pres’ removal power so it does not overstretch, this power does not
prevail over the authority of congress, separation of powers, FTC is quasi-leg & quasi-jud., not
under control of Pres, under Congress’, this agency exists for apolitical purpose), FTC must be
free from the Pres. Control
vi. Unitary Executive Theory: Independent agencies are unconstitutional and Congress must place
any agency it creates under the President’s direct supervision
c. Morrison v. Olson (formal)
i. Challenged the constitutionality of the Independent Counsel (specially appointed official who
could only be removed by the Attorney General and for good cause), per the Ethics in Govt. Act
(Watergate)
ii. Issue: Whether these two provisions (one regarding removal of an independent counsel and the
other defining procedures for removal by AG for good reason) violate the President's executive
power of appointment in article II?
iii. AG makes request to court for its creation but Court has to appoint IC
iv. Inferior officer which Congress control over (Subject to removal by AG, limited duties/JD/Term)
v. Held: Act doesn’t violate separation of powers because appointments clause allows courts to
have power to appoint inferior officers, but doesn’t undermine but simply reduces president’s
ability.
vi. Scalia dissent: thinks means if president doesn’t have all executive power then it is
unconstitutional
d. Free Enterprise Fund v. Public Company Accounting Oversight Board (formalist) Peekabo!
i. Sarbanes-Oxley Act of 2002 created to introduced tighter regulation of the accounting industry
under a new Public Accounting Oversight Board. “Peekaboo”
 Says that they fall under the oversight of the SEC
 Removal provision - Commission can only remove members for good cause in
accordance with certain procedures. (double insultation)
ii. Issue: Whether the President may be restricted in his ability to remove a principal officer, who is
in turn restricted in his ability to remove an inferior officer, even thought that inferior officer
determines the policy and enforce the laws of the United States?
iii. Hold: No, that is contrary to article II, dual for-cause limitation on the removal of Board
members contravenes with the Const. separation of power

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  Pres cannot do his duty (“take care that the laws be faithfully executed") if he cannot
oversee the faithfulness of this officers who execute them
 This is stripping power away from the president, he cannot hold the commission resp. or
oversee their conduct, therefore cannot fulfill his duty
 This makes the commission immune from presidential oversight
 PCAOB members changed to removal at will
iv. Dissent (functionalist): you want a third part that is separate from what is going on so you can
see the big picture. Want people with specific expertise on the board & want them to be
independent. Everywhere you look in the federal government structure you can see this and it
works so we should not throw it out. They are all in different kinds of cases.
e. Analysis of Constitutional interpretation
Formalist View Functionalist view
Language of the Constitution Purpose of the Constitution
Original intent of framers Evolving meaning over time
Importance of retaining boundaries w/i Overlap & interaction between the branches
different branches
3. The Practical Significance of Agency Independence
a. Strauss, The Place of Agencies in Govt: Separation of Powers & the Fourth Branch
i. Currently no obligation for independent agencies to submit proposed legislation, an executive
agency does to the OMB in office of White House
ii. Pres. chooses head of executive agencies/commissioners
 Agency heads choose people below them with consent of senate
 No at will removal, no direct power of Pres. over indpt. Agencies
 Have own litigation authority
 Pres. has appoint of chair with indept. Agencies, Pres. can change the chair w/o cause
(bump them down)
iii. Pres. come and go but governing statutes and values remain constant
iv. Pres. influence over IA is heightened by special ties w/ chairmen
v. Congress has created independent agencies during times when president is from opposite
political parties, but sometimes used to keep certain decisions at a distance from politics
4. Organizational Charts
a. Organizationally, both types of agencies are top down hierarchical, bureaucratic structures that have
similar range of functions, organizational issues, all are subject to APA
D. Who Shapes Policy in an Agency?
a. Agencies do not have a say in who works within them & those people directly affect the substance of
the agency’s policy
1. Political Appointees
a. Reflect the will of the people, supposed to bring the president’s preferences to the agencies
b. Getting the Job
i. Combination of what you know and who you know
ii. GAO Report to the Chairman: Committee sent report of questions that they wanted the
chairman to ask nominees, questions were to confirm their skills and abilities, competency
test in 4 categories: result oriented decision making, financial management, IT management
and human capital management
iii. Reich, Locked in the Cabinet: Inner monologue by an appointee, coached into how to act
during hearing, don’t show that you know too much and to be respectful to the members by
kissing their butt
c. Keeping the Job

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 i. Whitman, EPA Administrator, Resigns: Bush administration, Whitman was chosen bc she
was more moderate, She clashed with this admin. On some things, memo went out said that
Bush was running for reelection and if anyone wanted to leave now was the time, she said
she resigned to spend “more time with family”, she was either pressured to or didn’t want to
run it anymore
ii. Zagorin, Why Were These U.S. Attorneys Fired?: a large amount of U.S. attorneys were
fired within a short amount of time, there was talk of this happening bc the attorneys were
not doing what the Republican Congress members wanted them to do (open an investigation
during election on their campaign opponent)
2. Career Civil Servants
a. Presence of these people was supposed to keep the agency (?) stable as the political staff changes
with administration
b. Rourke, Bureaucracy, Politics, and Public Policy: interaction between political executives at the
top and career officials below them, career bureaucrats (CB) tailor their recommendations to fit
what they believe are the views on the policy exec (PE), bureaucratic opposition is guerilla style –
covert, confide doubts to friendly leg. That go an alert the rest, PE can force CB to do things but
cannot force them to do it enthusiastically,
IV. CHAPTER 5 – STATUTORY IMPLEMENTATION BY AGENCIES
A. Notice and Comment Rule Making – Informal Rulemaking
1. Agency provides notice of what it wants the rule to be, allows the public to comment on it, takes those
comments into consideration and can do many things with the rule
2. Initiating the Process
a. An agency can start it on its own, a private party can reach out, industry groups, the White House
and other agencies. Call for a regulatory review from the Office of Information and Regulatory
Affairs (OIRA)
b. Next step, issue a Notice of Proposed Rulemaking (NPRM), which contains one or more proposed
rules and is published in the Federal Register.
i. Contains why the agency did what it did
ii. Sometimes before this they will issue an Advanced NPRM, to find the best proposals
iii. Any proposed rules with anticipated costs over $100 million must be submitted for review by the
Office of Information and Regulatory Affairs (OIRA) (subject to review when it exceeds budget
of $100 Million)
 EXECUTIVE AGENCIES ONLY
 This requires an analysis of the costs and benefits of rules and, to the extent permitted by
law, action only on the basis of a reasoned determination that the benefits justify the costs.
Conducted by the Office of Management and Budget (OMB)
3. Conducting the Process
a. After the agency publishes it, it must allow a reasonable time for interested parties to submit
comments on the proposed rule, means for them to be heard
b. Purpose to replace an oral, trial type hearing
c. When someone submits a comment they are required to consider it
d. After receiving the comment the agency will sometimes realize that its new proposal is a logical
outgrowth of another one, then the agency must conduct a new round of notice and comment by
issuing a Supplemental NPRM.
4. Completing the Process
a. Done by issuing a final rule that is codified into the Code of Federal Regulations
b. They are required to have a statement of “basis and purpose”, rationale & legal authority, they may
also include an impact analysis/ CBA.

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 c. If they want to amend/rescind a final rule they have to do the same NCRM process. Congress can
amend/repeal a statue only be enacting a new one.

B. Example: Standard 208

1. NHTSA’s final rule, principally responsible for airbags
a. They went through an extensive process of NCRM regarding passive restraints

14
 b. Optimism bias was present here for most citizens, didn’t want to wear their seatbelt bc they didn’t
think they would get into an accident
c. Public was not fan, got overturned.
d. Rule required passive restraints, new seatbelts – either automatic seatbelts or airbags. Ignition locks
were introduced, people hated it
2. Dept. of Transportation, NPRM
a. NPRM put forth 3 proposals:
i. Reverse order of implementation: small to large cars
 One reason: foreign manufacturers not affected in initial schedule, smaller cars were more
susceptible to injuring their occupants
ii. All cars compliant by the same day
iii. Rescission of requirement
 Because of high cost
 Why impose costs when Americans are dumb for not using cheaper manual seat belts
 No adequate education at this point to wear seatbelts
iv. Rabbit and Chevette Study
 High levels of belt use in these car
 Phone reports were higher, but usage rate was lower based on car accidents’ police reports
(about 55%)
 Interlock ignition system seemed to be solution, but Congress already prohibited it
 Then, huge public concern over inability to move belt in case of emergency
v. Does Cost Benefit Analysis:
 If flip schedule or make all implementation at the same time, would be a significant
reduction of injuries
 If rescind: manual seat belt remains and manufacturers could still offer passive restraints,
BUT people aren’t using manual seat belts
 Cost to manufacturers/consumers: more money, higher gas costs if heavier system,
environmental issues, etc.
 Benefit: less deaths
 CBA: expected manufacturers to have 60/40 split in favor of airbags vs. passive restraints
 But airbags have large upfront costs of designing system and reconfiguring assembly
line
 Huge upfront cost before first car is even produced
 Car sales are chance to recoup this lost, but hesitant because if everyone buys passive
restraint as opposed to airbag, won’t make up this large upfront cost from sales like
expected
 If aren’t many people use airbags, benefits go down
 Still present irrational fears from public impacts the manufacturer
 Cost side:
 Less sales than expected because of high costs, then loss of employment
 Fuel costs
vi. Consequences for Agency for pushing this mission: public may not approve of agency because
making life harder, and if come up with other safety thing then the atmosphere is already
negative from pushing passive restraints
vii. Equity Argument:
 People already using manual belts have to pay premium to get benefit they are already
receiving
viii. Monetary argument: targeted class is for people who have enough money to buy a new
car
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  But this argument isn’t valid because they have money and the standard thus doesn’t affect
you if you aren’t buying a new car
3. NHTSA Final Rule
a. Rule gets rescinded bc they did not have enough scientific evidence to prove that it was effective
enough to be more beneficial than detrimental, data was based from small pool Rabbit/Chevette data
b. Really, the recession came from Reagan and his administrative preferences
c. Agency never came out and said that, obviously
C. The Standard Form of Regulations
1. Elements of a Final Rule
a. Caption - title of the statute
b. Summary – purpose of the rule
c. Supplementary Information – background of the rule and rationale for it
d. Appendix – summary of party comments/technical data
e. Codification – after the final rule is published in the Federal Register, the operative provisions of the
rule are codified into the United States Code
2. CPSC, NPRM Safety Standards for Magnets
a. Problem: Kids are ingesting two or more magnets that connect together and pinch their intestines,
creating a high cost of surgical removal/medical
b. Rule wants to regulate the size and flux index (power) of the magnets
c. Alternatives: Voluntary recall (not every manf. Will do this), warning labels (people don’t read these
and kids cannot), specialized containers (the magnets arent going to stay in them), restrictions on
sales (kids will find a way to get them either way), and do nothing
d. Costs: Market wide profits (manf. Lose profits), lost to consumers (value consumers expect to gain
from the products)
D. The Tools of Statutory Implementation
a. Congress has enacted a statute in board terms, the agency is implementing the statue to provide all of
the details for which that statute is reasonable.
b. Test: Will they hold up in court? All the statute has to do is provide an intelligible principal
c. The factors that agencies consider or analysis that they perform when making a decision.
1. Statutory Analysis (553-576)
i. Agency considers the authority that the statute grants & instructions that it provides to
determine what actions are required before applying language.
ii. Agency gets statute from congress & now the agency has to analyze what the statute says,
easy to do when it is specific
iii. Must ensure that its regulations are:
 Within the scope of its statute
 Consistent with the terms of its statute
iv. Agency must look at their jurisdiction & authority
a. NHTSA Illustration
i. Denial of petitions for rulemaking
ii. GM & Mercedes were petitioning for a lower MPG for cars from 1984, retroactively want
to change the Corporate Average Fuel Economy (CAFÉ)
iii. Issue: Whether the retroactive idea is compatible with the other ideas that are already in the
statute?
iv. No, when looking at the penalties & credit together, you can see that congress did not want
this to be retroactive. Also, allowing this would be unfair to all the other car manf. That
actually complied with this and spent money on it
b. Judicial Guidance
i. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

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  Leading decision on judicial review of agency statutory interpretations
 Amendment to the ‘70s Clean Air Act which required the "nonattainment" States to
establish a permit program regulating "new or modified major stationary sources" of
air pollution, allowed states to adopt a plantwide definition of the term "stationary
source": an existing plant that contains several pollution-emitting devices may install
or modify one piece of equipment w/o meeting the permit conditions if the alteration
will not increase the total emissions from the plant
 Issue: Whether EPA's definition (decision to allow States to treat all of the pollution-
emitting devices within the same industrial grouping as though they were encased
within a single "bubble") is based on a reasonable construction of the statutory term
"stationary source".
 Holding: The EPA's definition of the term "source" is a permissible construction of the
statute which seeks to accommodate progress in reducing air pollution with economic
growth
 Two-part test regarding interpretation of statutes:
 (1) Whether congress has spoken directly on the precise the issue? -> If they have
spoken on the precise question, what is the role of the agency in interpreting the
statute?
 (2) If they have not spoken on the issue, is the agency's answer based on a
permissible interpretation of the statute?
1. Courts will defer to agency expertise if the interpretation is permissible
c. Agency Practice
i. Marshaw, Agency Statutory Interpretation
 Lack of empirical evidence, can use rulemaking documents to provide evidence
(legislative history)
 Rely on political consideration on a functional level
 Congressional acquiescence but political in the sense of the overriding political
environment
 Debates about philosophy regarding this
 In single headed agencies, no debate of theories
 In multi-headed agencies, they are more likely bc group of bipartisan people
 Agencies did not ask themselves about the constitutionality
2. Scientific Analysis
a. It examines the scientific data that the problem requires, existing and potential technology for
responding to risks
b. Helps agonies to evaluate the risk of a bad event occurring and to develop appropriate
responses
i. Notion of risk: percentage increase could be a large detriment to the population when put
into perspective (risk of cancer jumping one percent could mean millions of people in that
1%)
ii. Risk v. Uncertainty
 Risk – being able to quantify, in percentage terms, the probability that something can
happen
 Uncertainty – there is a possibility of something that can happen byt we do not know
about the probability of the timeline
a. NHTA Illustration

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 i. Involved the risk of airbags, in front passenger seats to children/smaller people, airbags
were causing harm to people in less serious accidents
ii. Companies were using one sized crash test dummy, did not help estimate the risk of
damages for people over other size
iii. Uncertainty: regarding TEA 21 (improve occupant protection of various sizes), want the
number lower allowed for the test bc it allows them to see what happens at each step
b. Assessing Risk
 Risk Assessment: acquire and process information about the risk
 Risk Management: determine how to respond to such risk
ii. Ropeik & Gray, Risk! (p.558)
 Risk vs. Uncertainty vs. Ignorance
 Risk: knowing something is bad and having handle on probability
 Ex. getting on an airplane
 Uncertainty: knowing something is out there, but not enough data to know if it
presents a risk or uncertain about probability
 Ex. Climate change—uncertainty about human activities in regard to changes
 Ignorance: know knowledge that something exists
 Ex. could be an asteroid that destroys earth in 100 years
 When agencies deal with risk, must assess risk (know what’s going on) and manage
risk (what to do about it)
 The Role of Science ->
 Toxicology – Cannot test on humans, humans are not animals = not very effective, use
maximum tolerated dosage,
 Variables between rats and humans, rats have no alternative variables, humans do
 Epidemiology – look at a large population who is already exposed, try to make sense
of whats going on,
 Threshold phenomena – at some point, things change in varying ways, correlation
=/= causation
 Statistical Analysis – different judgements that you can make regarding statistics,
cannot do double blind/control group experiments in real world
c. Scientific and Trans-Scientific Questions
i. Wagner, The Science Charade in Toxic Risk Regulation
 Science is providing answers up to a point, a policy choice has to be made
 Where do you look to figure out what the numbers mean? They make them up, they
are judgements
 Science Charade
 Scientists saying that up to this point we know whats going on but at this point we
are making a policy judgement
 But what really happens is that they are pretending there is no mess and that the
science tells us what to do - that’s bogus
 Trans-Science
 questions which can be asked by science by can’t be answered by science are
uncertain bc scientists cant test it
 Science can give a fragmented view, mix of science and policy, trans-science
junctions can be bridged with policy choices
 : arise from a variety of political and theoretical limitations on scientific
experimentation
d. Scientific Uncertainty
i. Kip Viscusi, Fatal Tradeoffs
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  How agencies respond to uncertainty, often respond to this by offering ranges of risk
reduction
 No reliable date but obligated to act ex. Disposal of the nation’s nuclear waste
 Yucca Mountain case, what to do with nuclear waste?
 The problem of nuclear waste having a half life (100-50 (takes 10 years) 50 - 25
(takes 10 years) - etc)
 EPA says a reasonable amount of time would be 10K years
 National Academy of Sciences said 1 million years
 Cognitive biases, how we evaluate risks
e. Intentional or Unintentional Abuse of Science
i. Wagner, The Science Charade in Toxic Risk Regulation
 The Unintentional Charade
 They are making the judgements based on policy without realizing it or
recognizing that it is a choice
 Unintentional bc of bad information
 The Intentional Charade
 The know that they are missing info so they fill it with policy
 May have well motivated reasons, we need to get this regulation passed so I am
going to interpret what I think, without revealing the uncertainty
 Problem with this - disguising policy choices as science
1. Scientists have no constituency, you can stick your own policy judgement in
places in order to frustrate the process. Use policy judgements (not science)
to say that this is a bad idea.
2. Disrupting the democratic process, its not their job to be doing this.
 The Premeditated Charade
 They have a policy first and then use science to fill the gaps in it, do the research
second
 Carefully select studies to favor the agency's position
 Motivated by truth or ideology? Here's where we want to get to, give me the
science
 Better to take action than inaction, fill in the blanks with policy
 Influence by different things (funding if you get this regulation out, etc.)
 Problem w/ this - they are deceiving people
1. Regan & EPA & Formaldehyde - Manipulating science after-the-fact in
order to justify a predetermined political decision that would benefit an
important industry
3. Economic Analysis
a. Assess costs in relation to the benefits of different alternatives
i. Valuing Statistical Lives – (an abstract person)
 Viscusi, Fatal Tradeoffs
 Willingness to Pay - What consumers are willing to pay to reduce their risk of
death. (Ex. Pay $100 for optional safety feature that will reduce their risk of death
from 1 in 5k to 1 in 10k, so $100 x 10,000 - $1,000,000 VSL)
 Willingness to Accept – Willingness to accept the risk associated with doing
something, given a particular payment. (Ex. Worker gets paid extra $700 per year,
10,000 workers paid that, multiply those = VSL $7million

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  Heterogeneity of Life: people tend to value their own life more but some regulations
benefit future generations
 Stated Preferences v. Revealed Preferences: What public says v. what public does
 Variations Among Agencies and Issues: economists study agencies and evaluate
market data, particularize the analysis for differences among risk across agencies or
even within a single agency
 Updating Valuations over Time: VSL can change over time as people preferences
about risk change.
 Cognitive Biases: this effects people’s willingness to pay, place high risk on things
that are not as likely to occur and vice versa
ii. Other Economic Assumption: Agencies have to make assumptions in order to monetize
benefits of regulation
iii. Selecting a Discount Rate
 Sunstein, Cost-Benefit Default Principles
 Discount Rate (p.584): A way for agencies to account for the dollar losing its
value in the future, in determining the costs of a regulation, A way of recognizing
the time value of money
1. Whether we are talking about an interest rate, or money that is going to be
spent in the future or the value of benefits that we are going to receive in the
future
 Purpose: Here are dollars that we do not have today but we expect to have in the
future, those dollars represent benefits. We are trying to come up with a number
to determine the (B-C=+/-)
1. If we are going to use dollars (for future value) we have to make sure they
are the same. Value of money changes over time, a dollar today is worth
more than a dollar tomorrow
2. Current dollars are worth more than future dollars so we need to discount
future dollars
 We are reducing future dollars to a current dollar value
1. Think of it as opposite of an interest rate
2. Discount rate of 3%, $100k right now will be worth $97k next year
3. Interest rate of 3%, $100k right now will be worth $103k next year
 Two issues that go under the name of discounting:
1. Latent Harms in the form of exposures whose consequences will occur late
in someone’s lifetime
2. Harms to future generations
 A CBA seeks to compare the NPV of costs imposed to the NPV of benefits
 Net Present Value: Difference between total discounted benefits and total
discounted costs NPV = (PVb-PVc)
1. For a single project, a positive NPV indicates acceptability
2. For multiple projects, go through each project and figure out the NPV, then
the one with the highest NPVs should receive the highest priority
3. Various approached to selecting a discount rate
a. Social Discount Rates: Measures the rate at which a society is
willing to trade present for future consumption
b. Bank interest rates (auto loans)
c. Rates of return on certain investments (govt. bonds)
d. Givens (some authority imposes one)

20
  NHTSA Average Fuel Economy Standards for Light Trucks
 7% discount rate for the value of future fuel savings & other benefits
 Car companies want a higher discount rate
1. it will lower the stream of benefits (?)
2. Current value is going to go down
 Rely on the interest of car loans, Financing of car loans
1. Look at interest rate at which cars are financed (that’s the value that
consumers are willing to pay for a car with improved fuel economy)
 If you impose these higher efficiency standards, then it is going to invoke
consumers to spend more money on a car (get a car loan) to save money on fuel.
 Consumers are willing to pay 9% more for car loans for more fuel-efficient cars =
their willingness to pay
 NHTSA response was that is logical but those are not the loan rates being used
right now, those are not the correct number, the current one are lower
 Interests groups (environmental) want a lower discount rate -> Increase the
present value of current benefits, Want 3%
 Final rule: agency meets in the middle and adopts a 7% discount rate
iv. Putting It All Together
 OMB, Circular A-4, To the Heads of Executive Agencies and Establish, Subject:
Regulatory Analysis
 Gives the guidelines for what agencies should do when answering the question:
“how is the proposed action expected to provide the anticipated benefits and
costs?
 Office of Management and Budget – ensures regulations are consistent with
applicable law and presidents priorities. Works under the OIRA, reviews agencies
b. The Controversy over Cost-Benefit Analysis
i. Sunstein, Cost-Benefit Default Principles
 Refers to instances that look as though agencies haven’t stepped back and done large
analysis of what they should be doing
 Sometimes doesn’t set priority well, with substantial resources going to small
problems with little attention going to big problem
 Or sometimes doesn’t account for costs such as operating costs, training of employee
costs
 Problem is that all regulatory that require specific technology with no exceptions are
questionable because of failure to recognize substitution effects:
 If replacing, could lead to substitution and unintended consequences
 Ex. airbags injured people, TEA 21 thus required balancing to prevent harm to
small people because American public objected
ii. Ackerman & Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental
Protection
 Skews cost/benefit analysis to the cost side and away from the benefit side
 Limits of quantification: quantified benefits of the proposed action and generally
ignore other, non-quantified, health and environmental. CBA skews decision making
against protecting public and the environment
 Ignoring what cannot be counted
c. Statutory Variations in Economic Analysis
i. Sunstein, Cost-Benefit Default Principles (provisions to permit, prohibit, or require the
agency to engage in CBA of its regulations)
ii. Organic statues formed CBA
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  Flat bans on consideration of costs
 Significant risk requirements: Alternative formulation is to require the agency to
address only “significant” or “unacceptable” risks
 Req. the agencies to address only significant and unacceptable risks
 Ex. Policy judgement- OSHA is trying to get rid of sig. risks in the work place bc
if we push the envelope too far we are interfering with how workers do their job
we will get backlash
 Substitute risks and health-health tradeoffs: Some statutes require agencies to consider
whether a regulation controlling one risk would create a substitute risk
 Feasibility requirements: Some statutes require agencies to regulate “to the extent
feasible” or “achievable” but thus put focus not on benefits but solely on costs and
they forbid an agency from regulating to a point that is neither
 Technically feasible because the relevant control technology doesn’t exist, not
 Economically feasible because the industry cannot bear the cost without
significant or massive business failures
 “Consideration” requirements: Large number of statutes as agencies to consider
various factors and then asks to produce maximum degree of reduction that is
achievable after considering these factors
 Cost-benefit Requirements: Several statutes ask agencies to balance costs against
benefits, mostly through prohibition of unreasonable risks alongside a definition of
unreasonable
 Problem: risks of something that can cause cancer can be so small and maybe that food
additive can be a lot more beneficial than it can be harmful.
4. Political Analysis
i. Considers other important aspects of the problem like political attitude or preferences
a. Public Attitudes and Distributional Effects
i. Public can play a role, agencies consider how the public is likely to react and whom the
regulations is likely to affect
ii. Distributional and fairness concerns
 Ex. Benefit went to normal sized adults, but costs for smaller ppl
 Standard 208 – people didn’t want to get trapped in their cars
b. Politics Preferences
i. Preferences of current political officials,
ii. EPA Notice of Denial of Petition
 -How is Standard 208 different from EPA denial (Pg. 606)
 208 didn’t flat out say it was what Regan wanted, but EPA denial said directly
president’s policy goes against regulation
 Chevron implicitly recognizes new administration is a perfectly legal reason to
change politics—political bias is obvious here but no said explicitly
 If change weren’t allowed, it would take away democratic accountability to
branches of governments and statutes of agencies
 Congressional preferences are also expressed in EPA denial
 Agency found that Congress didn’t authorize regulation of GHG under the
“general regulatory provisions” of the Clean Air Act
 Massachusetts later sues EPA, SC says look at statute because it delegates
authority to agency and there is nothing prohibiting EPA from regulating
Greenhouse Gases
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  Eventually EPA adopts regulation because EPA doesn’t get to it until 2008 and
Obama administration supported it by then
 Politics can play a role, but sheer political preferences can’t play a role in how you
read the statute
E. Other Policymaking Formats
1. Formal Adjudication (Formal Rulemaking)
a. Trial type process
i. Requires a hearing on the record with the presentation of evidence, similar to a courtroom
proceeding
ii. Hearsay is permissible, parties present their arguments, evidence (hearsay, lax on rules, cross
exams), retroactive, only certain people can participate (amicus curiae – friend of court), does
not have as much public participation,
iii. Presided over by Administrative Law Judge (ALJ)
 Article 1 judges, Indv. Engaging in the task of judging but it is within the executive branch
 Judicial immunity for their actions that are legit. Part of judging
 You cannot sue them even if they totally get the law wrong
 Can only be removed for good cause
 Must justify their decisions with reasons and findings
 Subject to normal judicial rules about "ex parte" contacts
 All info before the judge must be shared by all the parties
iv. Agencies have discretion to choose between NCRM & FA, unless the organic statute says
otherwise (FA typically takes place when specifically required by the statute authorizing the
rule)
b. Boston Medical Center Corporations & House Officers’ Assoication/Committee of Interns and
Residents, Petitioner
i. Issue: Whether interns, residents and fellows are employees\
ii. The court reverses the boards ruling, states that interns are employees (we have seen courts
reversing rules with the passive restraints & Chevron)
iii. Dissent: There is no policy change here, saying that it is incremental policy shift within the
partisan majority
iv. NLRB reasoning for reversal
 The specific wording in Section 2(3) of the National Labor Relation Act
 Looking at the words of the statute, definition of "employee" says it will include any
employee unless explicitly stated otherwise
 Exclusion of several workers, ex. Farmers.
v. Supreme court cases have said that the term employee should be interpreted broadly and that is
ok because that is what the SC has done
vi. Students are getting paid, work for an employer, spend most of their time in patients rooms,
provide a bulk of the care to the patients - what this looks like is an apprenticeship,
vii. Legislative History of the 1974 Healthcare Amendments
 Senate had introduced a new provision that talked about house staff being supervisors, this
was denied, showed the Congress did not think of them as students but as employees
2. Guidance (624-643)
i. Interpretive rules, statements of policy, and rules of "agency organization, or practice"
 Not legally binding substantive law
 Exempt form requirements of NCRM
 Information to help agency’s constituents what an agency means by something, does not
have the force of law (would not pass Chevron step 0)
ii. Why did congress do this?
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  Expense, long time frame, to change smaller details & internal facts
 Rules on how administrative agencies do their business, focus on the difficult problems
with NCRM & FA, but there are other things the need to focus on so G
iii. Problem?
 It is not binding, regulated entities are not sure if they should follow it
 Influenced -> Lack of procedural discipline, there is no board spectrum about the wisdom
of what they are doing
iv. A guidance document that is seeking to have binding legal effect, which it cannot.
 An agency is trying to promulgate a rule through guidance and not NCRM & FA
v. Guidance that looks like it is a binding rule gets challenged by an entity
 Court will say this is binding and this is not how you go about making a binding rule
 If the agency does not use NCRM and a Regulated Entity does something that does not
follow the guidance, all RE has to do is file a complaint saying they are trying to enforce
this upon them but it says guidance
 Concerned that there could be no one to challenge, ex. Where guidance document says we
are not going to enforce this anymore, then the RE do not want to be regulated, then a non-
enforcement guidance doctrine could just not be challenged
b. CFR Regulation p.627
i. Struck down bc it was overreaching as "guidance"
ii. Substantive rules - the have a stay of enforcement, dates you had to have something done by
iii. Does not sound like guidance when there is a stay, not really guidance, it was meant to binding
c. FCC Policy Statement p.630
i. Guidance was to create a "safe harbor" time after primetime, for the use of content & language
that was explicitly sexual.
ii. "Fleeting expletives" during primetime TV (slip ups)
iii. It is one thing to issue a guidance doctrine originally that says this is our interpretation of what
this means, this is what you have to consider.
iv. But if the agency comes back again and says they are going to reverse that, the courts usually
stop them. They do not want you going back and forth on the issues w/o going for NCRM
F. Other Descriptions of Agency Behavior (643-656)
1. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It
a. Capture Theory: agencies are dominated by regulated industries
b. Revolving door: a movement of personnel between roles as legislators and regulators and the
industries affect by the legislation and regulation.
i. Industries send someone into legislation
ii. Ex. Security Exchange and Commission - small commission, many of these employees are
spending time here and not really worried about their career and then they are going to work
Goldman Saks.
c. This would predict different outcomes based on the underlying relationship between agencies and
the varying interests
d. The influence of outside interests on an agency will depend on the way those interest are arrayed in
the agency’s environment.
e. Govt. agencies can be born into 1 of 4 of these political environments:
i. Client Politics
 When dominate interest groups favor its goals
 Most of the benefits of a program go to a single, small interest (industry) and most of the
costs are on a large number of people (taxpayers)
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  Benefits (high per-capita value) – industry high incentive to press & Costs (low per-
capita value) – ppl low incentive to oppose (unaware)
 Ex. FCC – property rights of radio frequencies, quickly became captured by a broadcast
system – which gave that system a monopoly
 Dependency on a client can be formalized in its statute
ii. Entrepreneurial Politics
 When a dominate interest group is hostile to its goals
 Costs are concentrated on an industry, benefits are spread throughout the people.
 Costs (high PCV) industry strong incentive to oppose, benefits (low PCV) ppl low
incentive to press
 Ex. NHTSA – GM had a large stake in it
 Born out of an attack of the interests it is now regulating
iii. Interest-Group Politics
 When two or more rival interest groups are in conflict over its goals
 Agency is neither the tool nor victim of the outside interest bc of offsetting pressures (rival
IG)
 High PCV cost & high PCV benefits, both beneficiaries & cost-payers have a strong
incentive to organize and press
 Ex. OSHA – struggle between labor and management
 Usually, no matter what they do they will have support/criticism
 Subject to pressure from the executive branch, there is not any real stability, go back and
forth depending on who is in political power
iv. Majoritarian Politics
 When no important interest group is involved
 Bureau and its program offer widely distributed benefits and impose widely dist. Costs.
 Benefits – low PCV, no one seeks to organize them & costs – low PVC, no one seeks
to avoid them
 Ex. Sherman Antitrust Act – no industry was especially threatened, ambiguous, case by
case basis
 When they create a foe they can be shut down by congress
2. Weingast, Regulation, Reregulation, and Deregulation: The Political Foundations of Agency-Clientele
Relationships
a. Iron Triangle: agencies are caught between Congress (specifically its committees) and regulated
industries
b. Agency policy equilibrium results from a combo of these factors:
i. Low or intermittent presidential interest
ii. Clear court precedents with little expectation of change
iii. Stable patterns in public opinion and the relative balance of IGs.
c. Political actors that are involved in making policy would be: Congress, Interest Groups and
Agencies.
i. Congress- Committees & subcommittees
 Mold policy choice by dividing the leg. Resps. Into separate policy jurisdictions (allow
committee to have a disprotionate influence over a policy) & committee membership is
self-selective
 Congressmen seek reelection, bend to the will of public opinion and active interest groups
that will aid their reelection
 Exerts control over agencies by:
 Decentralization of budget control to committees, means of control for agencies

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 1. You want to expand? Here's what I want.
2. They can cut budgets agency's commission
 Appointments
1. The committee lets the Pres. Know who will/not be acceptable to the
Senate, the senators will defer to the committee
 Hearings & investigations
1. Threat of oversight into the agency is enough to keep the commission in
line
ii. Agencies - The vehicle for the congressmen’s endeavor.
 Agency heads depend upon service to IG & committee members
 Aid powerful politicians by implementing policies beneficial to constituent groups relevant
for a policy area.
iii. Interest Groups
 Reward politicians through aiding in relection and gain the benefits of the policy of
agencies
G. Other theories we did not read about
1. Agency Expansion
a. The head of the agency and many of the indv. In some position of authority w/I the agencies are
seeking to maximize the budget for the agency, maximize the scope of JD of the agency
i. Budgets
 Examples of a "commons" problem: a common resource where pricing is ineffective
 Ex. Ocean of the world are commons, no effective pricing
 Rationally an economic actor will try to get there first
 Budget authority in congress, prior to New Deal, was centralized in a committee within the
house and the senate
 The committee that authorized spending was authorizing all the spending and they
had a responsibility to spend in a resp. manner
 Argument is that this how now become decentralized, more and more committees
now have the authority to appropriate money for spending
 So now who is responsible?
 Problem because, ex. If you're a head of a committee would you be a responsible member
and say oh I should moderate the amount of money that I spend bc of the debt we are in.
Well no one else is thinking of the common good so why should I?
 Decentralization of appropriation authority of each committee is leading to this commons
party
 If I do not spend this amount of money then another committee is going to get the
money and they are going to look better than me.
b. "more is always better"
c. Happens bc of the two constituencies:
i. Employees
 System of pay grades & seniority = level of compensation, no bonuses
 If you cannot move up then what are you looking for? Status & power
 What happens if the head of the agency is opposed to the prior agenda and you do not want
them to?
 You could go to congress, republican congressmen aren't going to care, democratic
ones will but they do not chair any committees right now
 You could seek to sabotage the committee head, slow things down,
ii. Congress

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  Credit for good things - Self-selection to committees that have oversight responsibility to
agencies, the more positive effect that agency has the better they look.
 Blame shift- Or it shifts blame away from Congress, if they even suggest something bad
(that you think would look bad), you could say that you stopped it and it makes you look
better to your constituency
 Shady politicians - go to another congressman, hey throw this to your agency and ill do this
for you, then turn around and say this is what that agency X is doing and I am going to stop
them
2. Agency Autonomy
a. There is another force within agencies that is pushing back against expansion
b. Whenever expansion of authority budget has the possibility of creating conflict (risk), then the
agency will not seek to expand
c. Agency expansion can have risks instead of benefits
i. Ex. USDA assigned the task of managing the food stamp program, prior to this they had a
narrow constituency, after given this responsibility their constituency goes up & they have a new
group and congressmen from that constituency. Opened up to a whole new area of scrutiny
ii. What happens when something seems to be within the natural scope of the agency but they
refuse to do it?
 DEA created bc the FBI did not want to deal with the drug problem
 Why wouldn’t the FBI want to deal with this?
 Unsolvable problem unlike bank robberies, so approach it as a public health problem
 Didn’t want FBI involved with drug gangs, corruption
d. Autonomy is critical to avoid these problems, maintaining control over its jurisdiction
i. They do not want expansion for expansion sake (open up to more criticism, oversight, negative
influence)
e. From employees view point - it can be favorable
i. Creates the opportunity for shirking - not doing a whole lot
ii. Where commitment is not that strong, advancement is improbable and there are others around
them doing a lot better then employees look at that and slack off
iii. So expansion would undercut this, it would make them work harder and longer - no thanks

CHAPTER 4: STATUTORY INTERPRETATIONS BY COURTS

A. A Classic Statutory Interpretation
a. Church of the Holy Trinity v. United States: A church had a contract to bring an alien (pastor) from
England to the U.S. There was an act that prohibited any from helping aliens come to the U.S to
perform labor or service of any kind in the U.S. Court said that there is not way that congress meant
to prohibit religious leaders from coming to the U.S, said pastors were not laborers or service. Looked
at the intent, purpose, title and the evil that the act was trying to prevent to interpret it that way.
b. Ways External textual analysis was used:
i. Intent (intentionalism): Looks at the legislative history - committee talked about amending the
bill to have it say manual labor, but they did not, just figured that they knew what they were
talking about
ii. Purpose (purposivism): to stop aliens from coming here who were not assimilating into society
well and they were breaking down the labor market
iii. Imaginative Reconstruction: This is a new problem, they did not think of it but if they had
thought of it, they would have done this
iv. Dynamic: Congress enacts a statute to deal with a certain place and time and then
circumstances change, congress has other stuff to do and does not always get back to statutes
previously enacted. Court sees itself as a "faithful agent of the legislative will to update the
statute bc congress lacks the institutional capacity to do it itself"
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 v. If the courts do this in a way that congress dislikes, they can enact/repeal a statute
B. Text-Based Tools
a. Tools for ascertaining meaning based on text, generally where courts begin
2. Ordinary Meaning vs. Technical Meaning
a. Courts usually look to construe text to the ordinary meaning (or the meaning at the time of the
enactment), Technical Meaning is a specialized legal meaning
b. Nix v. Hedden: Action by P to recover money that was collected by the Port Authority on a tariff tax
of vegetables. Issue: whether tomatoes, considered as provisions, are to be classes as "vegetables" or
as "fruits", within the meaning of the tariff act of 1883
i. Evidence from dictionaries, experts in the trade were presented to show the meaning. Court
found that there was no special meaning, therefore went with the plain meaning of the word.
c. Muscarello v. United States: This case revolved around two cases, both of which had to do with a
criminal statute (interpretation of “carries a firearm” – is this limited to carrying a fire arm on a
person). Court looks at carries in the primary meaning, dictionary, ways the court has used the word
in the past –
i. Ruling: carry applies only to person who knowingly possesses and conveys firearm in a
vehicle which the person accompanies (aka car counts as carry) because generally accepted
contemporary meaning of the word includes the vehicle
ii. Dissent: Argues the rule of lenity (criminal statutes must be construed for the defendant –
don’t want to make intention ambiguous criminal statutes that do not give fair notice as to what
acts will lead to the penalty)
3. Textual Canons of Construction
a. A Classic Example of Textual Canons
i. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: Dispute regarding the
meaning of the word “take” in an endangered species statute. Sect. interpreted it to have to do
with habitat modification. Court used WAC, ordinary meaning, dictionary definition, purpose,
WCC, and LH.
 Court held: Habitat modification is a legitimate application of the word "harm, The
ordinary meaning of harm would in fact include changes in habitat that hurt the
endangered animals, The intent of the Act to give broad protection to endangered species
must include even actions that may have minimal or unforeseeable effects
ii. Dissent: Scalia, says could be direct but incidental harm, meaning people are doing ordinary
everyday things and would get a permit to make sure aren’t doing something unlawful in
course of normal business (Ex. fisherman not going for endangered fish but catch some
anyway)
iii. Merit in multiple arguments, courts can pick and choose canons that they can use to interpret
the statute basically anyway that they want
b. Linguistic Canons – Strongest, looks at the text at issue
i. Ejusdem generis: “of the same kind, treat like things alike”
 When a general term follows a specific one, the general term should be understood as
reference to subjects akin to the one with specific meaning
 Ex. "no one shall operate a motorcycle, car, truck, dirt bike, R or any motorized vehicle
of any kind within park boundaries
ii. Noscitur a sociis: a word is known by the company it keeps, read the term in context.
 Aims to ensure that a term is interpreted consistently with surrounding words so as not to
unduly expand statutes beyond their reasonable reach
 Interpretation of a word or phrase depends on reading the whole statutory text,
considering the purpose and context of the statute, and consulting precedents or
authorities that inform the analysis

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  Ex. A trips over an item that a postal worker negligently left in the middle of his porch,
statute barring claims arising from “loss, miscarriage, or negligent transmissions of postal
matters.” Court said that negligent transmission does not go to all negligent acts, limited
by the word transmission (its context – precede by loss & miscarriage)
iii. Experssio unius est exclusion alterius: The mention of one thing is the exclusion of the
another. Congress meant ONLY what the statute says.
 Court can apply this canon to determine that the omission of another term was
intentional, force only when the items expressed are members of an associated group,
justifying that the omission of one item was a deliberate choice.
 Ex. Scalia’s dissent in Sweet Home, the statute has already dealt directly with habitat
modification/destruction in section 5 & 7, but not in the specific section the court was
looking at, they meant to not put it in that section.
iv. Other Linguistic Canons – NEVER USE ALONE, USE ONLY WITH OTHER CANONS
ABOVE ^^
 Punctuation: consideration, rarely sufficient,
 Ex. Oxford comma to avoid confusion
 The Last Antecedent Rule: a limiting clause modifies only the phrase that immediately
precedes it
 May be overcome by other indicia of meaning
 Ex. Barnhart – phrase concerning work only modified the clause that immediately
proceeds it
 Conjunctive v. Disjunctive (and v. or): terms connected by a disjunctive [should] be
given separate meanings unless the context dictates otherwise.
 Conjunctive – all need to be satisfied – and
 Disjunctive – only some need to be satisfied – or
 May v. Shall: “may” connotes permissive or discretionary action, whereas the word
“shall” connotes a mandatory one
 The Dictionary Act: enacted to supply rules of construction for all legislation, applies in
determining the meaning of any act unless the context indicates otherwise. Fair degree of
leeway to ignore this.
c. Whole Act Canon
 Interpret a statutory word or phrase by looking at the rest of the statute
 Congress is using A to mean the same thing throughout the statute, how the word is used
in the whole act to gain a meaning of what the word means in the statute
ii. The Whole Act Rule
 Instructs the court to view statutory terms as a part of the entire legislation in which they
were enacted – in connection with the whole statute, creating coherence
 Construe words in connection with others in the same statute.
 Identical Words – Consistent Meaning
 Identical words and phrases within the same statute should have the same meaning
unless have reason to believe Congress used term in two different ways
 Ex. Cline – Age can mean chronological years or just old age & what comes with it
– determined it had two meanings within the same statute
 Avoiding Redundancy and Surplusage
 If possible, a statute shouldn’t contain any clause, sentence or word that is
superfluous, void, or insignificant
 Congress would not have included a word if it did not have a meaning, each word
has a meaning

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  Ex. Circuit City - If we interpret "any other workers…" then the "seaman & railroad
employees" would become surplusage if we interpret the catch all phrase as being
surplusage. Therefore, if we interpret this using the surplusage canon, any other has
to be limited.
iii. Titles and Provisos – Do not use alone
 Titles – Titles of acts used to reveal meaning, Ex. “an act to protect puppies”, confirm
meaning & clarify subject matter.
 Provisos – clauses that state exceptions to or limitations on the application of a statute.
Ex. “Provided that …”
 Explains what congress means by the act, a sort of marketing tool as well (analogy)
d. Whole Code Canons
 Directs courts to construe language in one statute by looking to language in other statutes.
 The U.S. Code being a ~ cohesive whole ~
 The closer the placement and time (of enactment), the stronger the inference; the farther
away in placement and time, the weaker the inference. Different congresses -> weaker
inference
ii. In pari materia: statues addressing the same subject matter should be construed as if they were
one law, construe statutes together
 Closer the subject matter & in time, the stronger the inference
 Ex. United States v. Stewart: Whether a tax payer was entitled to a refund on taxes on
capital gains on farm bonds issued under the Federal Farm Loan Act? Read in paria
materia with the Revenue Act of 1916, if they had intended capital gains to be exempt,
the would have so stated.
 Ex. Erlenbaugh v. United States: Defendants were accused of being in violation of an act
that made it unlawful for anyone to use interstate commerce to commit any unlawful
activity
 Exception: term Congress uses and over in the same way consistently over subject matter
and time, don’t have to worry about distance in subject matter and time
iii. Inferences across statues: (when statutes are insufficiently related to be read in paria materia,
they can still be interpreted together through this.)
 Courts draw an inference about the language in one statute from similar language in
another statute
 When Congress uses two statutes having similar purposes, particularly when one is
enacted shortly after another, it is appropriate to presume that Congress intended that text
to have the same meaning in both statutes
iv. Repeals by Implication: not favored, will not be presumed unless the intention of the
legislature to repeal is clear & manifest
 Court will not repeal another statute unless that is explicitly said by congress.
 If congress enacts a subsequent statute that seems to argue that congress has implication
repealed an earlier statute courts should not read the new statute so as to repeal by
implication the new statute. If congress wants to repeal a statute it must do so explicitly
 When Congress enacts a statute, it does not intend to repel a prior statute without so
stating
4. Substantive Canons
i. Rules about how the law should look
b. The Rule of Lenity
i. Ambiguity of a criminal statute should be resolved in favor of the defendant, interpreted
narrowly when it is ambiguous.

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  Reasoning - individual rights & the belief that fair warning should be accorded as it what
conduct is criminal, used as a tie breaker.
 Applies when statute area ambiguous after consulting other canons
ii. United States v. Santos: D operated an illegal gambling scheme, Statute states that the govt.
must prove that a transaction involved (1) the proceeds of a specified unlawful activity and (2)
that the defendant knew the proceeds represented some form of unlawful activity. Govt.
contends that proceeds mean receipts. Both definitions of the P & D worked so the court
applied the rule of lenity as a tie breaker.
iii. Notes on the Remedial Purposes Canon
 Once a statute is determined to be remedial, it is construed broadly in order to effectuate
its purpose
 Definition remedial: giving or intended as a remedy or cure giving or intended as a
remedy or cure.
c. The Constitutional Avoidance Canon - avoid a constitutional question
i. Requires a court to avoid interpretations of statutes that render them unconstitutional or raise
serious doubts about their constitutionality, at least when other interpretations of the statute are
permissible.
ii. Courts will, when possible, avoid interpreting a statute that raises a grieve constitutional
question
 Unconstitutionality Canon (traditional form) - when there are two possible interpretations
of a statute, one that would be unconstitutional and the other valid, the courts duty is to
adopt the one which will save the act
 Constitutional avoidance canon (modern variant) - courts should avoid interpretations
that raise a serious question of constitutionality of a statute
iii. Only applies in cases where a statute is ambiguous, even then it only applies in the face of a
grave constitutional doubt.
iv. If there is no question of the meaning, the court must determine whether the provision violates
the constitution, if it determines it does, next it must determine whether the provision can be
severed from the statute or if they whole statute must be invalidated
v. Zadvydas v. Davis: Issue: Whether a post-removal-period statute authorizes the Attorney
General to detain a removal alien indefinitely beyond the removal period or only for a period
of time reasonably necessary to secure the alien's removal?
 Hold: the indefinite detention of aliens … would raise serious constitutional concerns, we
construe the statute to contain an implicit reasonable time (subject to application by
federal court review)
 There was some ambiguity in terms of what the AG could do in terms of keeping
someone in detention for a specified amount of time. It could be read in two different
ways, some limitation or that there was no limitation. (two reasonable interpretations).
The no limit brought up a grieves constitutional issue so they interpreted the other way.
vi. Almendarez-Torres v. United States: 8 U.S.C. Sect.1326 -> forbids an alien who was deported
to return to the U.S. and if they do they face no more than 2 years in prison. Subsection B2 -
same thing but if they were deported bc of an aggravated felony & come back -> face up to no
more than 20 yrs in prison
 Hold: the subsection is a penalty provision (authorizes the court to increase the sentence
for recidivism), it does not define a separate crime, Govt. is not required to charge the
factor that it mentions (earlier conviction) in the indictment
 Const. Canon does not apply here bc the statute is clear
d. The Federalism Clear Statement Rule – don’t adopt an interpretation that intrudes on states’ rights
unless Congress has clearly selected it

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 i. whenever congress intends to alter the federal state-balance, it must do so expressly in the
statute
 Prohibit certain interpretations absent express language in the statute authorizing the
interpretations
 Require congress to use specific language, ambiguity is not enough, when they want to
displace state power. If you intend to reduce state power, you must do so clearly.
 Congress can supersede state law because of the supremacy clause
ii. Gregory v. Ashcroft: Missouri Constitution, - all judges other than municipal judges shall
retire at the age of 70. Issue: Whether this mandatory retirement provision violates the federal
Age Discrimination in Employment Act of 1967 and whether it comports with the federal
constitutional prescription of equal protection of the laws?
 Hold: Affirmed (against Petnrs.), we will not attribute to Congress an intent to intrude on
state governmental functions regardless of whether congress acted in pursuant to its
commerce clause powers or sect. 5 of the 14th amendment.
 Reasoning: Federal govt. cannot intrude too much on the sovereignty of states bc the
balance of powers. The only way that this can be changed is to find clear intent that
congress intended to alter the usual constitutional balance between the states and federal
govt. (plain statement rule)
 Limits are imposed on elected officials, amendment of the ADEA excludes elected
official
e. The Presumption Against Preemption
i. Federal statutes are interpreted to not go against State laws, rests on the notion that the police
powers of the state are not to be superseded unless there was a clear statement by congress
ii. Courts are going to construe a preemption provision in a federal statute narrowly - to the
degree that congress wants preemption, they must state what they want preempted very clearly.
iii. Preemption clause is not specific enough -> presume against the boarder and narrow it as much
as you possibly can
f. The Presumption Against Retroactivity
i. Statutes are interpreted to not act retroactively bc it is not far for past actions to be subject to a
new law
ii. Courts are not going to give retroactive application to past law unless congress clearly says to
do so
g. The Presumption Against Extraterritorial Application
i. Common sense, U.S. statutes do not apply outside of the U.S. territories (unless clearly stated)
5. Scrivener’s Errors (really incorrect, not just unlikely) & Absurd Results (really arbitrary or
nonsensical, not just awkward or harsh)
a. 1st Principle - Courts are directed to correct legislative drafting mistakes
i. Correct scrivener’s errors to effectuate what Congress really meant to say or what otherwise
makes sense of statute
ii. Ex. the due date for something is 12/32/2016
b. 2nd principle - courts are direct to avoid statutory interpretations that produce absurd results
c. Absurd results -> Holy Trinity
d. Normative matter for court being willing to read a statute in a way that goes ahead with scrivener’s
error/absurd results decision
e. United States v. Locke: Claimants (appellees) - miners bringing suit against the Govt.
f. Issue: Whether Section 314(a) that stated requirements should be filed "prior to December 31st"
should be construed to requir a filing "on or before December 31st"? Cannot make up terms for
congress, Held: it was due prior to December 31st, Plain meaning of the terms, not LH
6. Criticisms of Canons of Construction
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 a. Llwellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How
Statutes are to be Construed
i. States that almost every canon can be construed to work for any meaning or the opposite side,
legal realism – attacks legislative intent as undiscoverable and incoherent.
b. Defense by Scalia
i. Says that the lists includes some maxims that are not canons at all, and otherwise overstates the
case that all canons are useless. Notes the lack of citations to certain points
C. Intent and Purpose-Based Tools
a. There is a hierarchy with how much reliance is appropriate on certain pieces of legislative history
1. Forms of Legislative History - Not all of the legislative history carries the same weight, you have to
look at where it is coming from. Traditional Hierarchy -
a. Committee (& conference) Reports
i. Strongest because they are written by those who are in charge of the bill
ii. Weakness - only contains the items from the committee, does not contain the amendments
from the floor, it may be deliberately doctored
iii. They are only telling us the story of the bill coming out of the committee, all the subsequent
actions are afterwards
b. Author or Sponsor Statements
i. Given less weight bc now we are down to single individuals, no guarantees that these people
are speaking on anyone put themselves
c. Member Statements
i. -Pro: members may choose to become informed on certain issues even if not part of the
committee
ii. -Con: Statement not given much weight if on the “losing side” of a particular provision (that is,
if majority rejected it)
d. Hearing Records
i. Very susceptible to interest groups trying to make the record for future use
e. Other Legislative Statements
i. Legislative history of other statutes (past and future) may be guide to understanding meaning
of word, provision, purpose of statute, particularly if written close in time or subject
ii. Relies on similar assumptions as whole code canons
iii. Inferences about what Congress meant or said can be stronger or weaker depending on factors
such as closeness in time or subject matter
f. Presidential & Agency Statements
i. President is presumed to have signed and read the bill, and may have proposed or drafted
original version of bill
ii. But, president and agency officials may hold interpretations different from Congress
2. Judicial Reliance on Legislative History
a. Moore v. Harris: Issue: whether employed had to deal with the sect's definition to mean only those
employed by someone else or it allowed for self-employed coal workers to be under the statute. 10
yrs -> presumed that you got it from working in the coal mines,15 year statutory presumptions about
eligibility -> presumed to be totally disabled through 3&4
i. Pre- Chevron case, skidmore doctrine - gave weight to the agencies interpretation of the
statute. We are not in chevron, but we are in a situation of proving the sects interpretation is
wrong
ii. Sect says it was meant to definitely say that self-employed miners were not covered
iii. Court here is saying that the secretary had misled congress by stating a different definition in
the letter (where they would be more likely to spend time reading it) as opposed to reading the
entire statute

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 iv. Looks at LH -> Thus, court is sure Congress intended to include all people because used
employed/work and employee/worker interchangeable as synonyms—regardless of legal
relationship of getting into the mine, you were still in the mine, Reinforces idea of cutting
against surplusage
3. Criticisms of Judicial Reliance on Legislative History
a. Montana Wilderness Association v. United States #1: Checkerboard pattern for railroad, Burlington
needs access to get to its land and says has an easement by necessity because Alaska Land Act
applies to all national forest even though it only refers to Alaska.
i. Court looks to whole code (adds to ambiguity), whole act (suggest limited to Alaska), and
legislative history (to see if anything to the contrary of only applying to Alaska—nothing
clearly saying allows access outside of Alaska). Held that act is limited in its application to the
state of AL and has no relevance in this case
b. Montana Wilderness Association v. United States 2nd Opinion: Burlington found new legislative
history of the conference report from Colorado Wilderness (passed 3 days after Alaska Act)
i. Conference report gets lots of credit because both chambers passed it, close in time to Alaska
(aka same congress enacted both), same issue, same people in the committees that considered
both acts
ii. This act agreed to delete a section of the act because similar language already existed in
Alaska, so important because they acted on what they thought Alaska act said
D. Tools for Considering Changed Circumstances
1. How courts take into account of changed circumstances when interpreting statute
2. Bob Jones University v. United States: Injunction against private schools in MS that they are no longer
tax exempt status, if they practice racial discrimination
a. IRS then made it a rule that schools who practiced racial discriminatory policies will no longer be
considered tax exempt. IRS said that, according to common law policy defined charitable as things
that are for the common good. Use this definition in regards to the changing societal notions about
race – Plessy, other rulings, etc.
b. Used in paria materia, whole act canon.
c. Statute contains a dynamic term – so should be updated
d. Statute is old, so ripe for updating
e. Concrete and abundant evidence of change warranting updating – social movements
E. Theories of Statutory Interpretation
1. Intentionalism: The intent of the legislature
a. Goal – aims to implement the enacting leg’s expectation as to the specific application of a statute,
what did congress mean? (words/phrases)
b. Advantage: Leg supremacy, upholding democracy
c. Looks first at text, then the Leg history
d. Critiques: Can find evidence for different perspectives because so many people voting on the law
who could have felt differently, Legal fiction: idea that there is one legal intent isn’t real, public
choice theory, text is what congress enacted & what should be looked at
i. What Does Intent Mean? – what kind of mental plans, aims or expectations matter?
ii. Whose Intent Is Relevant? – few statutes enacted unanimously, does “intent of congress” refer
to those who voted in favor? What about the citizens, committee reports, sponsors?
iii. Is Collective Intent Coherent? – social choice theory, statutes reflect the sequences in which
multi-member groups consider multiple alternatives and the point at which cycling is stopped.
Other view is that we frequently say one intention is shared by all
iv. Does Intent Reflect More Than Legislative Self-Interest? – Public choice theory, legislators
have no intent apart from the desire to get reelected, statutes are sold to the highest bidder –

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 group that promises the best support in reelection efforts. Alternative perspective – members
within congress don’t think this?
v. Does Intent Constitute Law? – intentionalism often confuses the intention of the lawmaker
with the law itself. Has to be made into text.
vi. May Intent Trump Text? – Holy Trinity, intent trumping actual text with the plain meaning.
2. Purposivism and Legal Process Purposivism - What reasonable purpose did Congress, acting
reasonably, reasonably pursue?
a. Purposivism - the problem the leg. Sought to address
i. what was "the evil" (wrong or problem) that congress was trying to address here
ii. Directs courts to ascertain the meaning of a statute by examining the evil that the legislature
sought to address
iii. Decide how issue would have been voted on in order to achieve purpose
iv. Interpret in light of and give effect to purpose (don’t lead to absurd results
b. Legal Process Purposivism - the purpose that a reasonable legislature would reasonably pursue
i. Criticism - what does it really mean to say to look at reasonable? - it means that you are going
to look at what you would do, even without you realizing it - you are going to input your own
bias', own conceptions are going to get in the way
c. Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of the Law
i. Approach: (1) What is purpose; (2) How can text be applied in a given case to achieve it; (3)
Make sure not violating text; (4) Don’t harm generous values
ii. How to interpret purpose?
 Assume Congress is reasonable trying to do good for the public
 Compare new law to existing law—what is the change?
 Are there any cases in which application of statute is absolutely clear?
3. Imaginative Reconstruction: What would Congress have done if it had confronted the issue?
a. The intent of the legislature [that passed the statute] with respect to an issue or aspect that it did not
or could not consider at that time
b. What would Congress have done if they had a chance to talk about this problem? – imagine what the
intent would have been if they talked about it
c. Similar to Purposivism, but differs because put self in shoes of Congress that enacted at time it was
enacted and think about what statute meant at time BUT goes against idea of reasonable legislature
d. Posner, Statutory Interpretation in the Classroom and in the Courtroom
i. Posner thinks shouldn’t ignore interest groups, popular ignorance, prejudices, etc. that would
deflect legislators from pursuit of public interest because that would be more reflective of
judge’s self interest
ii. Ex. Thinks Sherman act was built to be vague in order to give courts power to make policy
4. Textualism and New Textualism: the ordinary meaning of words
a. Textualism
i. Privilege text over other sources, but doesn’t say can’t look at legislative history, just have to
look at text first and only look outside if ambiguity not resolved, word meaning at the time
congress wrote it
ii. In its strongest form, directs courts to stop with the text of the statute and to not engage in a
broader search for legislative intent even to confirm textual analysis
b. New Textualism: version that has emerged in last three decades, Scalia most responsible
i. Acknowledges public choice theory
c. Is Textualism Constitutionally Compelled? – some textualists claim that the statutory text is the
only permissible source of statutory meaning because the text and only the text is enacted
constitutionally (bicameralism & presentment). Others argue that it is permissible to rely on extrinsic
sources of legislative intent, such as legislative history.
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 d. Is Textualism More Constraining? – textualism commits courts to discern statutory meaning based
solely on textual analysis, some contend it is more constraining on judges
e. Is LH an Impermissible Interpretative Tool?
i. Scalia, A matter of Interpretation: Federal Courts and the Law
 The kinds of extra-textual material that could be looked to figure out ambiguity, on
normative grounds should be used
 "only the text is law" only the text has passed through congress, therefore textualism is
const. compelled
5. Dynamic Interpretation: the meaning in light of changed circumstances
a. Goal is determining meaning in changed circumstances
b. Advantage: promoting democratic values, recognizing that because of the "dynamic term" congress
intended that there would be a partnership with dynamic court IF circumstances changed
c. Tools: make the case for the changed circumstances
d. Critique: unrestrained and untethered
e. Alienikoff, Updating Statutory Interpretation
i. A Nautical Example: Exclusion of Homosexual Aliens under the Immigration and
Nationality Act
ii. Archeological Model - The meaning of a statute is set in stone on the date of its enactment
iii. Nautical Model - Statutes are an ongoing process
iv. Congress lacks the inst. Capacity to keep up with theses statutes with dynamic terms, they
cannot address them in any type of comprehensive way (no one has an interest). When there is
an actual controversy, the court has to look and see what this means/should mean.
 Court can defer to congress or acknowledge the legitimacy of the dynamic interpretation
F. Positive Descriptions of Judicial Behavior
1. Practical Reasoning
a. Eskridge & Frickey, Statutory Interpretation as Practical Reasoning
i. -Argue that all judges engage in a similar and inevitable process while interpreting statutes;
they can’t set aside own beliefs (which includes political preferences, judicial role in
interpreting statutes, and integrity of the law)
ii. Practical Reasoning: Statutory interpretation involves creative policymaking by judges and is
not just the Court’s figuring out the answer that was put “in” the statute by enacting legislature
iii. Hermeneutics: text lacks meaning until it is interpreted, process of how we determine meaning
 Hermeneutical Circle: The notion that you can be aware of all of the preunderstandings
that effect your judgement (how?), Demanding a degree of consciousness of recognition
that not most people are aware of.
b. Posner (notes): Judges are only looking narrowly at the precise question in front of them, they are
not thinking of the systemic consequences of their decisions
2. The Attitudinal Model
i. Model concludes that judges decide cases in accordance with their ideological preferences
a. Segal & Spaeth, The Supreme Court and the Attitudinal Model Revisited
i. Federal judges have lifetime tenure, so don’t care about public’s opinion of how they vote in
order to hold a job
ii. Thus, sometimes divide between justices is different than ideological divide, but sometimes
vote turns on the justices in the middle
b. Cross, The Theory of Practice and Statutory Interpretation
i. Believes empirical evidence saying judges have ideological patterns in their decisions is
overstated and that ideology isn’t the only driving factor in judicial outcomes

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 ii. Finds that the plain meaning rule associated with Textualism has little effect in constraining SC
justices’ ideological preferences—both liberal and conservative justices use plain meaning to
reach ideologically preferred outcomes
iii. Also finds that the greater use of legislative history correlates with liberal outcomes regardless
of the ideology of the judge using it
3. New Behavioral Theories – Problems with intuition vs. deliberation (p.463 n.6)
a. Judge Posner’s opinion on Attitudinal model
b. Many judges honestly believe that their decisions are not based on their political learnings
c. This is turned on its head by Bayes Theorem (general theory that describes the probability of an event
based on prior knowledge)
d. Much thinking, including that of busy judges, is based on telescoped thinking – emotional, intuitive,
commonsensical – that does not proceed step by step (deliberation) from explicit premises and offers
wide play for unconscious preconceptions (intuition)
e. Judging can be political & personal – judges personal background comes into play
f. Can also be nonpolitical & impersonal in the sense that judicial decisions are product of neutral
application of rules not made up for the occasion, also called legal formalism or legalism
g. Combines insights of all the views, normative and positive.
CHAPTER 6: CONTROL OF AGENCY ACTION
A. Presidential Control of Agency Action
a. Arguments for: Pres. must take care laws are faithfully executed (art. II)
b. Unitary Executive Theory: power is all with pres., heads of agencies make decisions as agents of the
Pres., if this was a thing, independent agencies would not exist
1. Control of Agency Personnel
a. Control of nominations of agency heads – follow his ideology
b. Threat of removal – if those individuals are not loyal, pres. can fire (for cause/at will)
2. Control of Appropriations
a. Can recommend budget cuts/delays if agencies don’t follow the admin preferences
b. Cannot use a line item veto (cancel specific items of a budget) – cannot use bc the budget went
through both houses and if the Pres used this what he signed would be different than what congress
approved
3. Regulatory Planning and Review
a. Executive Order No. 12,866, Regulatory Planning & Review (Clinton): defines the essential
framework for regulatory planning & review, OIRA Process, only planning mechanism applies to
independent agencies.
i. White house controls the OMB (Office of Management & Budget), which controls the OIRA
(Office of Information & Regulatory Affairs) which controls the planning & review aspects.
ii. Pres appoints both the head of the OMB & OIRA
iii. Planning function – to provide for the coordination of regulations, executive & independent
agencies both subject
 Head of OIRA will set a date, on that date give the proposed actions, then issue a
Unified Regulatory Agenda -> circulated to the agency -> then the agency responds
back to the URA with concerns -> OIRA -> OMB then OMB goes back to the
agencies
 The main purpose is to make sure that the agencies are not being redundant and that
they do not contradict each other
iv. Review function – anything that has a budget of more than $100 Million in CBA is subject,
EXECUTIVE AGENCY ONLY

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  Independent are not subject because the Pres controls the OIRA & OMB, If a pres.
tried to subject the IA's then we are setting up conflicts between CBA in OMB and
what the organic statute of independent agencies says (See Sunstein, CBA
Principles)
v. Conflict on the planning & review side -> Heads go to president
b. Return & Prompt Letters
i. Mechanisms that allow for policy guidance
ii. Return letters: remit proposed regulations to the agency that produced them for
reconsideration, providing an explanation of the deficiencies and suggestions for further
development.
 Ex. Letter from OIRA to DOT, RE: lithium batteries – OIRA found an issue
consulting with the Small Business Association that this rule would make things
harder for them so OIRA expresses this to DOT, gave a “strong suggestion” on what
DOT should do.
iii. Prompt Letters: address an agency’s plans or priorities for a given year, may suggest that an
agency explore a “promising” regulatory issue for agency action, accelerate its efforts or
rescind/modify an existing rule.
 Ex. Letter from OIRA to EPA, RE: Beaches – OIRA was checking EPA’s progress
on an initiative for cleaner beaches, not mandating policies but basically demands
EPA tells that what they have been doing. EPA replies and basically said we have
done all this, what can you do?
iv. These letters are effective because then there is evidence of what the administration is
requesting – hard for an agency to ignore bc it is public record.
c. The Debate About Regulatory Planning & Review
i. For OIRA – improves legitimacy of agencies action by increasing accountability, Pres
involvement increases legitimacy bc Pres is elected by the will of the people and agencies are
not.
 Improve efficacy & efficiency of agency action – OIRA provides coordination
between agencies, this ensures there is no redundancy. OIRA takes an “outside
view” on CBA.
ii. Against – CBA component – difficult to monetize some risks, OIRA weakens rules with high
costs as opposed to strengthening rules with large benefits. (economic costs & benefits)
 OIRA does not have the staff or time to perform review in an adequate manner.
 OIRA is a discrete process, it is not open and regulated entities can influence them
 The agency is the expert, OIRA is not so they should not have influence over
agencies
iii. Letter to DOT, from OIRA, Re: TREAD Act. – involving the use of either an indirect or direct
tire pressure monitoring system in cars. Direct system has sensors in each indv. Tire. Indirect –
deals with ABS, monitors the rotational speed of wheels as compared to others – underinflated
tires rotate at a different speed.
 DOT said that the direct system was the best way, OIRA sent this letter rejecting that
bc not all cars have ABS yet so if you use indirect it will make car manufacturers get
ABS, which would be cheaper and increase safety overall. No certainty
manufacturers would respond that way. Organic statute talked about tire safety, not
overall safety.
 Language of the act "indicate to an operator when a tire is significantly under
inflated"
 DOT RULE: Direct or indirect, either system is ok for four year, then after that only
direct
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  Chevron test – has congress spoken to the issue? Yes bc the statute says “A” tire,
therefore you have to use direct bc indirect will not always indicate when “A” tire is
underinflated
4. Presidential Directives
i. Pre-regulatory directives in the form of official memos to executive-branch agencies by the
Pres. Can instruct the agency to take a particular action under its existing regulatory authority
ii. Different from exec. Orders, takes the form of a memo issued to actors in govt., directing them
to take action under existing regulator authority
iii. Relatively rare, executive orders are more common
5. Other White House and Agency Involvement
a. Informally and formally involved in invisible ways (phone calls and meetings)
b. Also, other agencies can be involved with other agencies’ rulemaking process
i. Can be good if coordinate to prevent overlap, but bad if becomes turf war
B. Congressional Control
a. Congressional Review Act: requires both independent & executive agencies to submit “major”
rules, as well as other CBA info., to Congress and the General Accounting Office before the rule
may take effect. Major rules do not become effective for 60 days, allowing Congress to review.
i. A member may expedite procedures by proposing a joint resolution of disapproval of the rule.
It can overturn a rule by a vote of both chambers and the Pres’ approval or with a super
majority vote over the Pres’ veto. [Rarely used]
1. New Legislation
a. Agency promulgates a regulation & if congress does not like it, congress can enact a statute getting
rid or changing the regulation if the pres. signs it.
b. Congress could enact a new organic statute (redefine the JD, or change authority) or they can
terminate the agency
c. Rarely used bc change requires something drastic or president, public & bipartisan efforts
2. Appropriations Legislation
a. Can use this to restrict funding to a particular agency or regulatory program
b. Changed over time, at one time the ways & means committee controlled the bulk of Aprs., allowed
congress to keep a closer eye on expenditures (centralized)
c. Now it has become far more decentralized, govt. does not really have an eye over where the money
is being spent, committees have not been able to keep an eye on $ (decentralized)
d. Congress has been able to reward agencies (more aprs.) or punish them (cutting aprs.)
3. Oversight Hearings
a. Bringing officials from the executive branch (executive & indepnt. Agencies) before congress to
explain whatever they need
i. Congress can use these to uncover facts in aid of further leg. Activity, information tool,
pressure agencies to conform to their policies. Hold officials accountable for their actions –
public airing or blaming.
ii. Unified govt. -> usually less oversight, aligning preferences
iii. Capture theory: Agency seeking to provide economic rents to interests, members of
committees beholden to those interests as well, if both the committee & agency are captured,
there are not going to be a lot of oversight hearings
b. Case Study: How Congressional Checks on Executive Branch Authority Derailed an EPA
Administrator
i. Congress subpoenaed the head of the EPA, Ann Gorsuch, to explain where Superfund money
was going and to explain her lack of inactivity. Reagan told her to exert executive privilege so
that she would not have to testify or turn over any documents. There was a lawsuit filed but the
court dismissed it and said that the two branches needed to figure it out. Eventually, Reagan

39
 through her under the bus, took away the DOJ protection, Ann resigned & Congress got its
information.
c. Kane, West Wing Aides Cited for Contempt; Refusal to Testify Prompts House Action: An aid
cited executive privilege & refused to testify
d. Coile, EPA Chief Sits and Takes His Punishment
4. Fire Alarms
a. Police Patrols – tools that requires congress to monitor agency action, oversight, require congress to
go out and actively look for things.
b. Fire Alarms – tools that position constituents to monitor agency action and alert congress when
legislative intervention is necessary.
c. Administrative Procedure Act functions as a fire alarm for congress
i. A member of congress could task a staff member to overview NCRM OR you can rely on
interested 3rd parties to sound the alarm once they see the NPRM
ii. You can participate in the NCRM or coordinate with comments, work with interest groups
d. Citizen-suit provisions: Provision in a statute that give any person a right to seek judicial review of
agency action. Plaintiffs can also reach out to members of congress and make them aware of whats
going on, seek their help
e. Freedom of Information Act
f. Congress has allowed 3rd parties to ring the fire alarm on agency action
5. Legislative Vetoes – invalidated by the Supreme Court
a. A statutory provision that enables Congress to reverse an agency decision without enacting a new
statute. Forms: one-house, two-house or committee. – allows congress to reverse an agency decision
without bicameralism or presentment
b. Immigration & Naturalization Service v. Chadha: Chadha was an immigrant here on a student visa,
it expired, Chadha (P) sought to stay, INS says you have to show why in front of an immigration
judge, P made his case, judge allows him to stay. Now, the judge must go to tell the Attorney
General (who has the power to overrule the judge and kick him out), AG agrees and says he can
stay. Then it gets reported to Congress. A representative is a dbag and doesn’t want Chadha to stay,
files a resolution to kick him out, only needed to be passed through the House. The rest of the Reps.
Don’t even get to read the whole bill, only hear dbag’s statements & they pass it. This suit ensues.
i. Awkward because both INS & Chadha want this to be declared unconsitional by the Supreme
court, INS wants this figured out once and for all & Chadha just wants to stay. So the House
files an amicus brief on their behalf.
ii. Court rejects the LV – says it violates presentment, bicameralism and if congress is not going
to do both those things it cannot make something a law.
iii. Dissent – this invalidates hundreds of other vetos, the court needs to limit this to certain veto,
rejects the formalist argument
c. Congress still puts the LV into agency’s organic statutes as a sort of subtle reminder that they are
watching and its there – but they cannot use it
6. Congressional Control of Agency Officials – Rejected by the Courts
a. When congress involves itself in the removal of an agency head, using that removal power to compel
compliance with its preferences, much like the Pres. & Executive agencies.
b. Bowsher v. Synar: An effort by Congress to reduce the budget deficit, when the deficit met a certain
amount in a year, it triggered the Gramm-Rudman-Hollings act. The act allowed congress to
appoints a Comptroller General –(nominated by the Pres. & for cause removal, worked under the
GAO). OMB & CBO give separate estimate the amount of federal budget deficit -> Comptroller
General -> goes to the president & tells him the cuts that need to be made -> sequestration order
submitted to congress -> Congress may by legislation reduce spending to obviate the need for the
sequestration order
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 i. Issue here is a direct congressional role in the removal of officers charged with the execution
of laws beyond this limited one is inconsistent with the separation of powers
ii. Court says that the for cause removal reasons are very broad - (joint resolution, then goes to the
president who has an interest in keeping in a bad CG, congress can override with 2/3 majority)
- court argues that bc of the majority rule congress controls the president
C. Judicial Control of Agency Action
1. Judicial Control of Agency Statutory Interpretation
i. How much deference will a court give to an agency’s interpretation?
ii. A Chevron analysis is applied when an agency's regulations are being challenged due to
question of the agency's authority under statute to regulate in the area they have promulgated a
rule for. This is then more of a question of statutory interpretation rather than whether its a
"good" regulation - the court then finishes its review there and would not look at its arbitrary
and capriciousness.
b. Before Chevron: Skidmore v. Swift & Co (Less deference)
i. Facts: Employees brought an action against D to recover overtime under the Fair Labor
Standards Act of 1938, as they were required to stay at work over night while not technically
being on the clock. The administrator said that overtime did not fall within the bounds of the
act. The court looked to the administrator’s guidance and found flaws in his guidance
ii. The court stated that there was no statutory provision as to what deference courts should pay to
the Administrator’s guidance.
iii. However, the court states that, “we consider that the rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the courts by reason of their authority,
do constitute a body of experience and informed judgment to which courts and litigants may
properly resort for guidance.”
i. The court developed a test to determine the deference to be given to an administrative agency's
rules based on the following: (is the agency interpretation persuasive?)
 The thoroughness of the agency's investigation
 The validity of its reasoning
 The consistency of its interpretation over time
 Other persuasive powers of the agency
 Least amount of deference given to agency’s interpretation, court needs to find the
agency’s interpretation persuasive to use it.
ii. Analogy ~ burden of proof: the agency has to prove that the interpretation is reasonable
c. Chevron v. NRDS: (more deference) See above for facts
i. Analogy ~ burden of proof: deference is so great, the challenging group has to prove that the
agencies interpretation is not reasonable.
d. Step One: Clear Statutory Meaning
i. At Step One the court asks whether, using the regular rules of statutory construction, the “plain
language of the statute” will answer the question at issue.
ii. If so, the court will interpret the statute without deferring to the agency, and the inquiry ends.
iii. However, if the statutory language is ambiguous, or leaves a gap for the agency to fill in, the
court will proceed to Step Two.
iv. FDA v. Brown & Williamson Tobacco Corp.: The FDA attempted to regulate tobacco
products, tobacco companies challenged the regulations. FDA argued that since the Food,
Drug, and Cosmetic Act (FDCA) granted them authority over “drugs”, “devices” and
“combination products” which deliver the drug. This meant that they had authority to regulate
cigarettes. Congress had enacted a number of tobacco-specific laws after the FDCA, and the
FDA had never exercised any control over tobacco. The Court concluded in light of this that
Congress did not intend to give the FDA the power to regulate tobacco, and that the regulations
were therefore invalid.
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  Rule: The scope of authority held by an agency is determined by the agency's organic
statute. Where Congress repeatedly denies an agency the power to regulate a particular
area, and develops a comprehensive regulatory scheme outside the control of the agency,
the agency may not regulate that area.
 Reasoning: Whole act canon - if we read the whole act then the FDA has to remove it
from the market
 Whole Code canon - congress has already created an overall statutory scheme
regarding tobacco regulation
i. Congress is not going to delegate this authority with ambiguity, statutes
all constructed with the background of the FDA denying JD over
Tobacco, to say congress delegated that authority is pushing the court a
little too far
 If congress is going to allow the FDA to regulate tobacco it is going to do so
explicitly bc it has passed so many statutes dealing with tobacco
v. Step two: Unreasonable Agency Interpretations
 In Step Two the court asks whether the agency’s construction of the statute is reasonable
enough to be permissible.
 If it is, the court will defer to the agency’s interpretation, even if the court believes it is
not the best possible one. “Permissible” is a low standard, and getting to Step Two of the
Chevron analysis traditionally has meant that the party opposing the agency is about to
lose.
e. After Chevron: Mead & Barnhart
i. United States v. Mead Corp: Mead Corp. challenged the U.S. Customs Service classifying its
day planners as “diaries, notebooks, and address books …” which were subject to a tariff. The
issue was whether the court should defer to the U.S. Customs Services interpretation of the
Customs Act, as manifested through the many classification decisions [tariff ruling letters] its
regional offices made annually.
ii. Court says for Chevron to apply congress must have delegated authority to an agency to
interpret a statute and that agency must have demonstrated that authority with the interpretation
at issue. Says that an agency should not be able to command the force of law unless congress
intended to give it. The problem is how do we know when congress has intended that an
agency issued interpretation has the force of law? - The majority says the way you figure that
out is by the procedures that are used, if NCRM & Formal adjudication then it in tends the
agency to act with the force of law, if those are used then Chevron applies. If the agency
adjudications or rules lacked N&C, like proposed rules, interpretive rules and interim rules
 Adding a “Step 0” before a Chevron analysis will be done, need to ask “does Chevron
apply to this specific action? – if not -> Skidmore analysis
 Withheld Chevron deference because the ruling letters were not preceded by
NCRM, do not carry the force of law & are not, like regulations, intended to clarify
the rights & obligations of importers beyond the specific case under review.
 Chevron Step Zero: Whether congress intended that an agency issued
interpretation have the force of law?
 a test that must be passed before even getting to the Chevron two-step. Chevron
DOES NOT come into play when:
 The agency did not make a formal rule. When the agency does not invoke its
rulemaking authority sufficiently to merit Chevron deference, for example in an
unpublished decision deference is accorded commensurate with the merits of the
agency opinion.

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  The agency reversed established prior policy with very inadequate, or no,
explanation of why it was doing so, or has answered the question in an erratic
manner over time. (ex. rescission of standard 208)
 Dissent Scalia: The majority has made a mess and has left it for the lower courts to
figure out. Formality of procedures does not really go to the q of whether congress has
intended if the agency should have the power to engage in law making. There can be a
court that applies formal procedures in the way that violates its authority.
Informal/formal rulemaking is authorized but not required.
iii. Barnhart v. Walton: Petitioner Commissioner of Social Security denied respondent claimant's
claim for benefits, since his mental illness prevented him from engaging in substantial gainful
activity (SGA) for only 11 months. The district court affirmed, but the United States Court of
Appeals for the Fourth Circuit reversed, finding there was no duration requirement for the
inability to engage in SGA. The court granted the government's petition for writ of certiorari.
 Which agency actions lacking NCRM & FA might be Chevron eligible, suggested
informal guidance alone might be eligible for Chevron under Mead
 “In this case, the interstitial nature of the legal question, the related expertise of the
Agency, the importance of the question to administration of the statute, the complexity
of that administration, and the careful consideration the Agency has given the question
over a long period of time all indicate that Chevron provides the appropriate legal lens
through which to view the legality of the Agency interpretation here at issue.”
 If this is a q within the authority of the agency and the agency has interpreted it with the
reasoning for what it is doing (and its unlike mead with thousands of interpretations) in
these instances what we are trying to do is have an analysis that is not one size fits all,
need to look at the interpretation to figure out if you need to apply chevron
 Scalia was right – lower courts are getting confused
2. Judicial Control of Agency Statutory Implementation
a. Review of Agency Policy
i. Arbitrary and Capricious test, Used with notice and comment, default for decision-making
 For formal rulemaking: standard is substantial evidence on the record
 BUT, Congress is also free in the organic statute to specify a different standard for
judicial review (doesn’t have to go with default of arbitrary and capricious).
 Looks at whether the substance of the regulation passes the A&C standard under the
APA
 An APA arbitrary and capricious standard of review is only conducted by the court
when an injured party can establish standing and the question is not one of statutory
interpretation/agency authority but takes a "hard look" at the regulation itself.
ii. Citizens to Preserve Overton Park, Inc. v. Volpe: Statute that prohibited DOT from using
federal funds to construct a highway through a public park if there are other feasible
alternatives. Sect. of Transportation approved the route through the park without explaining
why other routes were not feasible. Ps want the Sect. to explain his reasoning, lower courts said
that he did not have to. Sect. provided affidavits that show his reasoning after the fact so they
are not really helpful
 Arbitrary and capricious standard applies: the standard of review for these kinds of
formal adjudicative decisions is that a court has to get an evidentiary record so that the
court can determine whether the decision was made on the basis of the relevant factors
within the statute. The court needs to see how he came to this decision, then the court
can determine if he made an error - based on the record in front of the decision maker
was there a clear error in judgement?

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  Ultimately, court here remanded to the lower court to look at the procedural aspects in
terms of the court review (since can’t just rely on affidavits, need to look at the record
upon which the decision was made to decide if arbitrary and capricious)
iii. Motor Vehicle Manufacturers Ass’n of the United States, Inc v. State Farm: the action that
is under review here would be NHTSA’s rescission of Standard 208 (passive restraints).
Challenge to an agency’s action that is not relying on Chevron but the APA. Court’s issue is
that NHTSA could have modified the rule by requiring airbags instead of rescinding it and
agency was too dismissive of automatic seatbelts. Example of courts taking a "hard look" at
agency decisions under the A&C test. Ends up being remanded for additional information.
iv. Standard of review: Agency must examine relevant data and articulate satisfactory
explanation for its action
 Court must then determine whether the decision was made based on a consideration of
the relevant factors and whether there has been a clear error of judgment
 Court wants to ensure that agency has considered all the appropriate standards based
on what the record shows and that they have considered those appropriate factors
appropriately
 Normally, agency rule is arbitrary and capricious if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the
evidence, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise
 But, scope of review under the arbitrary and capricious standard is narrow and a court is
not to substitute its judgment for that of the agency
v. Elements of the reasoning of decision making that the court is going to demand:
 Some real explanation of why an agency would flip flop
 If there is an alternative, you cannot ignore/disregard it (ex. mandating the airbags)
 Cannot discount/dismiss evidence (passive/automatic seatbelts)
 If you're going to rely on presidential directives, you have to articulate that in the
reasoning
 If you are arguing that presidential reqs. This, you have to make an argument for
how that decision does not contravene the statue
b. Judicial Control of Agency Procedure
i. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.: Involves
the storage of spent nuclear fuel, the agency issued a rule to address the issue and they are
challenged. DC - Agency followed APA specified standards, court said that they had to add
oral testimony, said that bc they needed to be fair and allow groups to participate in a
meaningful way to get a search for the right answer. Created a sort of hybrid rulemaking
between NCRM & FA, this is invalid bc its not in the statute & if you want it you have to
lobby in congress.
ii. SC says that Courts cannot impose procedures on an agency beyond those specified in the
organic statute by the APA. Congress said that they can choose between NPRM & FA for a
reason, they know what is best for their needs.
iii. Congress is free to amend the APA, if it chooses to allow for additional procedures, it can
change the agencies organic statute
c. Notes and Questions
i. Reconciling Mead and Vermont Yankee
ii. Mead encourages agencies to choose any procedures BUT if the reviewing court finds it
doesn’t have force of law, then use Chevron deference and then thrown back to Skidmore and
have to make a persuasive argument
iii. Vermont Yankee says to do it however you want as long as it is provided for in the APA
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3. Availability of Judicial Review
a. Standing:
i. Standing doctrine bars courts from hearing cases at the behest of certain plaintiffs
ii. By limiting which plaintiffs can challenge agency action, standing doctrine limits the
opportunities for judicial review (and hence judicial control) of agency action
iii. To be able to bring a suit against a party you must have:
 Injury in Fact: Aka you cannot have standing just bc you do not like something. You
had to have some kind of physical/economic injury. Something tangible rather than just
a mere idea has been harmed
 Causation: The party that you are suing is causing the harm.
 Redressability: The court have to be able to do something about the problem. If the
court cannot provide a remedy that is going to redress the alleged harm, then you cannot
have standing.
iv. Massachusetts v. EPA: How do we determine the standing of a sovereign state? At issue is the
regulation of greenhouse gasses, NE states want regulation of greenhouse gasses by the Bush
admin
 Bush Admin -> wanted to regulate GG problems with a comprehensive strategy
v. P says that GHG are pollutants under the Clean Air Act so the EPA needs to issue a regulation,
there is a NCRM but EPA decides not to take further action - we do not have authority and the
Bush's admin wants a comprehensible structure not piecemeal
vi. Notion is that there was a procedural right at issue, argument by the P was that agency action
could not be unlawfully withheld. Based on the NCRM the EPA should have moved forward.
 Do not have to show that the procedure would have changed the outcome. If they had a
rulemaking procedure that declined to issue the final rule, the would have satisfied the
procedural req.
vii. Injury in fact is the denial of the procedural right, Causation - EPA has not done anything on
the NCRM & Redress - court orders EPA to do something.
viii. Majority - under the federal system the states surrendered aspects of their sovereignty to
the federal govt., in exchange the federal govt. says that they are going to protect the state,
ensure public good, etc. Congress has enacted the CAA to tell EPA to regulate air pollution
and Ps have a right to challenge the rejection of the rulemaking petition as A&C. MA has an
interest in keeping all of its land and in the quality of its atmosphere, therefore, they should be
granted a special treatment for standing
ix. Dissent - no basis for special standing, states are no different from any other citizen, have to
meet the traditional standing rules.
x. *Takeaway: we’re giving standing to challenge for a procedural right to make EPA to conduct
rulemaking to look at the issue, can’t just say no

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 Step 0: Whether
congress intended that
an agency issued
interpretation have the
force of law? (Mead)

NO: No
YES:
rulemaking
NCRM/FA
involved (ruling
Used
letter)

Step 1: Has Congress

specifically addressed Is the agency’s
the precise issue in interpretation
question? (uses normal persuasive? (Skidmore)
tools)

YES: Did
the agency Factors: Thoroughness
NO: Step 2
follow that of investigation, validity
direction? of its reasoning,
consistency of its
interpretation over time
Other persuasive powers
of the agency
Step 2: Whether the
If yes – done
agency’s interpretation
If not – agency is reasonable (not
has exceeded the implausible)? Does it
authority fall within the
delegated to it permissible bounds?

YES: NO: the

Agency’s interpretation
interpretation is implausible
is reasonable (not likely)

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