5/15/11 10:30 PM ARS OUTLINE INTRODUCTION: GOVERNMENT AS REGULATOR AND REGULATED A. Harris v.

State - What does motor vehicle mean? 1. Ordinary Meaning a) In light of other statutes b) Legislatures purpose? c) Rule of thumb to solve ambiguities d) What did the legislature say? CANONS OF INTERPRETATION - TEXTUAL Plain meaning When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. Ejusdem generis ("of the same kinds, class, or nature") When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes). Expressio unius est exclusio alterius ("the express mention of one thing excludes all others") Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as". Noscitur a sociis ("a word is known by the company it keeps") When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. CANONS OF INTERPRETATION SUBSTANTIVE Constitutional Avoidance Rule of Lenity B. Hornbeck v. Salazar - Big Oil and drilling moratorium 1. Did Salazar put words in the experts mouths? 2. No CBA analysis 3. Concerns about agency capture I.

C. Agencies 1. Created by Congress a) Have an organic statute b) Derive lawmaking authority from Congress c) Regulate (bans, funding, enforcement, etc.) II. LEGISLATION AND STATUTORY INTERPRETATION A. Legislative Process: Basic Mechanics 1. INS v. Chadha INS allows Chadha to remain after his student visa expired. Congress attempted to overrule. a) legislative veto concerns, can the legislative branch get two bites at the apple after delegating away authority? b) Burger Majority: No, this violates Art. 1 7. 1) Concerns about separation of powers 2) Formalist must follow process set out in constitution 3) Congress cannot review/override executive decision c) Powell Concurrence: Not unconstitutional, but incorrect 1) Congress is acting quasi-judicial 2) Should have no say in application of law to an individual d) White Dissent: Congress should be allowed to do this 1) Functionalist congress can delegate power to agencies, it should have a veto as a way to keep a check 2) Majority is ignoring the realities of the modern regulatory state 2. Clinton v. City of New York Line Item Veto Act 1. Stevens Majority: LIV Act unconstitutional (violates Art. 1 7) a) Formalist Constitution does not allow president to enact, amend, or repeal laws can only vote yes or no. 2. Scalia Dissent: Functionalist view a) Equivalent of congress allowing the president to decline to spend money on certain programs (Stevens responds that this changes the actual words on the page) 3. Breyer Dissent: Functionalist a) Circumstances have changed b) When the constitution was written there wasnt the omnibus legislation we have today. c) This makes it harder for the president to simply veto legislation 2

B. Schools of Statutory Interpretation 1. Intentionalism and Purposivism a) Purposivism i) Ask: what was the evil or mischief congress sought to remedy? ii) Judge as a social historian, what makes sense in light of the laws original purpose? Most faithful to the purpose. iii) Strengths: pragmatic. Solves problems on the ground. More concerned with getting to a just result iv) Weaknesses: Little bit unsettling in terms of uprooting some settled conceptions of what the law means. Depends in some ways on what any given judge takes the law to be or to mean. Can be highly subjective and dependent on the circumstances of the case b) Holy Trinity i) NY church brings in priest from England. Statute forbids importation of laborers from outside the U.S. ii) Brewer Majority: Barring action may be within the letter of the statute, but outside the spirit. iii) Act included exceptions for actors, artists, singers, lecturers, and domestic servants. iv) This is not the evil that congress sought to address (cheap manual labor affecting the U.S. job market) v) Takeaway: There is a main purpose behind a statute, which should be used to interpret the meaning of the statute in any given case. c) Intentionalism i) What would the enacting congress have done? ii) Scalia is viciously opposed to this. d) Riggs v. Palmer murdered for inheritance. i) It doesnt matter what the words of the statute are, there is no way congress intended to incentivize murder in this way. ii) Court overrides statutes and the words in a will. 2. Plain Meaning; Textualism: The New Purposivism a) Textualism i) ii) Language in statute Dictionary definition for plain meaning

iii) b)

c) d)

e)

NO LEGISLATIVE HISTORY - intent does not matter, only the finished product Normative Justification i) Theory Of Law Rule: Everyone should be able to read the law and have an equal understanding Strengths: objective and transparent; it is the most democratic of schools. Weaknesses: language is often ambiguous. Textualism can be blind to its own subjectivity. Can also seem cruelly detached from the consequences of its opinions. United States v. Marshall LSD does carrying medium count in weight

for mandatory sentencing? i) statute talks about mixtures of LSD ii) PCP distinguishes weight of pure drug v. drug as a mixture iii) Easterbrook Majority: Yes it does. Delivery system needs to be calculated in weight or drug is weightless. Since PCP is the only one that makes a distinction, Congress did not intend LSD to be decided the same way. (expresio unio) iv) Cummings Dissent: textualist reading defies intent: mixture does not mean carrier medium v) Posner Dissent: Absurd outcome. Carrier medium does not effect potency dealers can sell the same amount of bad drug and get different sentences. Violates purpose of the statute drug control. f) Green v. Bock Laundry i) statute discusses prejudice to the defendant ii) Green is the plaintiff iii) Stevens Majority: statute only applies to criminal cases iv) Scalia concurrence: least violence to the text v) Blackmun Dissent: Policy concerns, we should prevent everyone from prejudice g) WVU Hospitals v. Casey - Expert Fees (not in the statute denied) h) General Dynamics age discrimination (only applies to older people, Thomas dissents with Textualism) 3. Judicial Correction of Legislative Mistake a) The Abusrdity Doctrine excluding absurd results that appear to fall within the scope of the text. 4

b) U.S. v. Kirby i) statute makes it a crime to disrupt the federal mail ii) sheriff arrests mailman for murder and is arrested in turn iii) court says this is clearly and absurd result no matter what the statute reads The Golden Rule c) Scriveners Error- court will correct an error in the transcription of the legislature d) U.S. v. Locke Dissent: typos must be fixed and are the fault of the govt. 4. Ordinary Meaning or Special Meaning Nix v. Hedden: Facts: Tax collector trying to collect import taxes on tomatoes: tax on vegetables, but not fruit Is a tomato a fruit or vegetable? Courts analysis: o Dictionary: tomato could be a fruit or vegetable based on definitions o Common language: what we eat them with & how chefs use tomatoes Tomatoes served as a salad or side dish, not dessert therefore vegetable, not fruit BUT, now, tomatoes are used in dessert too should that change? Should common sociological usage matter? How do supreme court judges make observations about common life? Whos brief should carry more weight botanist or chefs? Overall question: what is the correct community of speakers?

To interpret statutes most begin with the common usage Assume that Congress uses language the way most people do But, if technical language, understand that Congress may be speaking to experts with terms of art * Language doesnt mean things in the abstract it only means things to communities of speakers * Smith v. United States: Statute: illegal to use or carry a firearm o Side note: Why didnt prosecutor argue he carried the gun? Prosecutor screwed up mischarged & govt didnt want to let him go 5

Q: is bartering a gun a violation of the ban on using a firearm during a drug crime? o Purpose: to prevent violence during drug crimes When drug deals go wrong, if there are guns more likely to become violent Congress wanted to mitigate violence when drug deals went bad in the presence of guns drugs + guns = bad o OConnor: Dictionary definition of use : to convert to ones service, to employ = everything Fire a bullet (obviously), bludgeon, barter, etc Which dictionary? Websters? Blacks?

o Scalia: Ordinary use of use a firearm = to fire a bullet Looks to plain meaning of text most natural meaning given the context Dont try to fit the statute to the possible, but esoteric meaning Texualism = semantic use use in context o Side note: cannon against surplusage words should be read to give independent meaning; are both use & carry doing the same work? 5. Dynamic Interpretation and Changed Circumstances Commonwealth v. Wolansky: MA Statute says that only voters can be jurors Woman voter = juror? No? o Court seems to be bending over backwards to prevent women from being jurors Once statutes are passed tend not to be repealed Unlike common law statutes are not dynamic dont change with the times So what do judges do? o Does it fall to the court to update? Or should the court stay faithful to the statute and leave it to the legislature to go back and change the law? C. Legislative History 1. Basic Mechanics: Uses and abuses of legislative history: Post New Deal golden age: legislator statements seen as dispositive Reagan revolution: Scalia and Easterbrook

critique legislative history Justice Kennedy: balanced measured use of legislative history (see Allapattah) North Haven v. Bell Title IX. School boards challenge an education regulation. Regulation purports to include employment practices under Title IX. School boards say Title IX only covers discrimination in access to programs, so regulation is invalid because it exceeds statutory mandate. Plaintiffs best arguments: o Textual argument: Statutory language talks about benefiting from or participating in any educational program or activity. Employment is not explicitly mentioned. Employees dont benefit from / participate in educational programs. It strains the ordinary use of language to say that employees benefit from educational programs. o Legislative history: No cmte report attached to this legislation bc it was an amendment to legislation already on the floor. Senator Bayh floor statement: reference to faculty employment comes prior to part of statement when Bayh invokes Title VII he references employment under part of statement where hes seemingly talking about something other than Title VII Conversation bw Senator Bayh and Senator Pell: Pell asks about scope of sections, and Bayh says it covers 3 basic types of discrimination, one being employment w/in an institution but was that type of discrimination to be covered by Title IX or Title VII? Conference cmte: Deletes House provision that explicitly disclaimed that employment discrimination not included majority says language excluded bc incompatible with what Senate hoped to achieve (coverage of employment); dissent says House didnt say why it receded perhaps due to inconsistencies that would have arisen Who has the better legislative history argument? Ultimately, Court rules for upholding the regulation (shades of Chevron appear here) 2. The Textualist Critique Derived from political theory: Rule of law, not rule of men (even legislators) To look to legislative history you are confusing the history with the law 7

Laws have gone through the formal process legislative history has not Blanchard & Continental Can: deeper than political theory o Actual view into the legislative process the deals struck between lobbyists, the views of staffers Theoretical = flawed; Practical = unreliable

Parole evidence: some sources OK = dictionary Dictionaries are neutral not partial to one side Scalia worries that leg. history is being read by other judges as the law No one argues that the dictionary is the law Blanchard v. Bergeron Can attorneys fee awarded by the court be greater than the pre-existing contingency fee agreement? Private parties decided among selves before lawsuit that fees would be capped at 40% of substantive award. Majority: o Senate cmte report: Atty fees statute ought to be interpreted in light of Johnson (5th Cir.) 12 factors and 3 district court cases. o Even though applying Johnson itself, the appeals ct reached the opposite conclusion, these 3 district ct cases show how to properly apply Johnson and that pre-existing arrangement is only one consideration. Scalia concurrence: Natural reading of statute is that reasonable means what court decides is reasonable statute says that judge makes the call, who knows how judge decides what is reasonable. o Scalia agrees with majority, but throws a tantrum. Mention of Johnson and other cases only got into cmte report bc of a staffer, probably at suggestion of a lobbyist. Legislators voting on statute didnt know about these cases. Isnt it plausible to say reasonable means what judge decides or, if there was a prior agreement, whatever that agreement calls for [unless that prior agreement seems unreasonable...]? This case highlights why textualists are suspicious of enterprise of legislative history. Continental Can Co. v. Chicago Truck Drivers

There is a requirement that pension plan be funded - if not bad things happen. Trucking industry has notoriously underfunded pensions. Trucking union (the teamsters) lobbies Congress to get exception to general rule that if pension is not funded negative consequences befall your union. They have some success, but what was it? How much of a deal were they able to extract from Congress? Law says that so long as teamsters pensions are substantially all funded, they get favorable treatment. What does substantially all mean? o Ordinary language: hard to say 53% = substantially all o Legislative history: Rep. Thompson: term of art, 85% Sen. Durenberger: Inserts remark after debate saying it means majority and nobody object. Does silence = consent? Probably not, statement wasnt made on the floor incredibly unlikely anyone had opportunity to dissent. Two months after passage of law, expresses shock at Thompsons understanding of substantially all statute originated in Senate, House should not be interpreting! Durenberger clearly motivated by wanting teamsters support. 3. The New Synthesis

Exxon Mobil Corp. v. Allapattah Services, Inc. Does 28 USC 1367 overrule Zahn? o 1367 overruled Finley clearly resolved in the statute o Does 1367 also apply to diversity cases? o Kennedy: Start with the text (ALWAYS): based on the text, there would be jxd no distinction btwn federal and diversity jxd - if claims are part of the same case, there is jxd Only look at leg. history when the statute is unclear Why does Kennedy look at leg. history then? o Responding to dissent o Might be trying to get votes from other justices who do look at leg. History Legislative history: House report: o 1367 overrules Finley, but Zahn is intact 9

o Approves of Subcommittee report Subcommittee working paper: (J. Posner) o Good idea to overrule Zahn Kennedy no reason to give one report more weight than the other Sneaky Law Professors: the text is clear, but the sneaky law professors establish legislative history that contradicts the text?? So: text is clear, leg. history points in many directions & is unclear go

back to text o Dissent: Statute is ambiguous Legislative history is evidence of the fact that the statute is ambiguous Exxon stands for: Legislative history is OK not categorically off limits - but should use with eyes open & only after arguing the TEXT 4. Legislative Inaction Bob Jones v. U.S. (SCOTUS, 1983) p. 1050 IRS revoked Bob Jones 501(c)(3) status because of racially discriminatory provisions. IRS created a rule that all 501(c)(3) orgs would be required not to be illegal or contrary to public policy. Burger opinion: Purposivist o Taxpayers are subsidizing tax exempt orgs and would be contrary to public policy to subsidize a racist org o Legislative inaction: Dog that didnt bark Congress aware of regulation and could have addressed it, but did not- acquiescence o Legislative acquiescence as sign of agreement with interpretation Have re-enacted tax code and left provision the same (Counter argument: this supposes omniscient congress and doesnt consider political inertia) 10

o 13 bills had been proposed to overturn IRS ruling and never got out of committee o Other provision denying tax exempt status to racist social clubs- reinforces natl policy against discrimination Rehnquist response: If Congress could enact a statute to deny private social clubs tax exempt status, it could have created the equivalent statute for educational institutions (expression unio)

5. Presidential Signing Statements Statement by President when signing bill into law What do signing statements do? o Political rhetoric/curtain call/ shout out to Congress: Uncontroversial o Legislative history: more controversial o Constitutional instrument: most controversial now Signing statement as legislative history o Pro: The president is a part of legislative process Art. I Sec. 7 Presidents view should have a role in judicial interpretation o Con: The president is a party to legislative process, but hes not a lawmaker His role is limited to sign or not sign binary decision Signing statement as constitutional instrument o President acknowledges certain provisions as unconstitutional & deems not to enforce them Line item veto dj vu? o Why not veto the whole bill? Omnibus bills not practical to kill entire bill o ABA vs. Dellinger: assault on rule of law vs. OK Does it make a difference? President will enforce the law anyway signing statement just makes his view public Increases transparency in execution of law D. Cannons of Construction

1. Semantic Cannons Expressio Unius: plain, cinnamon, sesame bagels all is expressed

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Noscitur a sociis: and chips words have meaning in context Ejusdem Generis: and other things (cream cheese, not necktie) preceding terms in a list limit a catchall provision Other cannons: surplusage, words should mean the same thing across the statute Silvers v. Sony Pictures Entertainment, Inc.: (Expressio Unius) Lawsuit over trademark infringement for film Production company assigned Silvers the right to sue for copyright infringement o The only property right that Silvers owns is the right to sue Q: Under the statute, does Silvers have the right to exercise the right to sue? Statute: o 501: only legal or beneficial owners of exclusive rights pre-statute: only person who could sue was owner of copyright couldnt divide ownership rights o 106: lists exclusive rights Majority: o Expressio Unius: list in 106 is exhaustive if the right is not listed, there is no cause of action Because Silvers right to sue is not listed she cannot bring a cause of action o Cannon used as grammatical tool BUT should Congress have included the right to sue in rights that allow a person to sue? Would that make sense? Dissent: o Shouldnt have invoked cannon no ambiguity Legislative intent & history are so clear that they resolve ambiguity of text No need for cannon at all o Legislative history: House Report: purpose is change copyright from indivisible to divisible property rights o Dissent doesnt read cannon as grammatical tool only uses cannon when necessary, ie after legislative history o No hierarchy of maxims of statutory interpretation no scale of cannons (like we did with legislative history) 12

o Cannons are not binding not law or science, too indeterminate Gustafson v. Alloyd Company: (Noscitur a Sociis) Exchange Act of 34: securities prospectus Wind Point sues Gustafson: WP bought stock from Gustafson claimed material misstatement in prospectus and wanted rescission Q: is the sale contract a prospectus? Majority: (Kennedy) o Doesnt start with definitions! o Starts with substantive provision 10: what should be contained in a prospectus Information that would be included in registration statement public filing document o Cannon: words should mean the same thing across the statute Prospectus should mean the same in 10 and 12 o 2(10): definition [t]he term `prospectus' means any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security Any communication broad, but must be read in light of the rest of the list in context means broadly disseminated communication not private contract o Surplusage: if any communication was given a broad reading, all the other words would be unnecessary letter, notice, advertisement would be redundant Thomas dissent: o Should have started with definitions o Noscitur a Sociis: not appropriate no ambiguity, and would limit Congress ability to create lists Should have invoked Ejustem Generis: for catchall terms o Same word has same meaning: not appropriate if Congress says words should have different meanings, like Congress does here Prospectus and prospectus have different meanings o Surplusage: Kennedys surplusage argument is circular

Noscitur a Sociis: sometimes obvious, but can be controversial

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People v. Smith (ejusdem generis) Issue: Smith pulled over in van, in van is an M-1 rifle (a really old military rifle, used by some as sporting rifle). He is charged under concealed weapon statute. Why might conviction be able to stick? Statute specifies dagger, dirk, stilettoor other dangerous weapon o Based solely on text, M-1 seems to be a dangerous weapon. o But, based on ejusdem generis, dangerous weapon category is narrowed based on preceding terms something small, easily concealable o Title: carrying concealed weapons based on Holy Trinity, we know heading can be used to some extent (heading not really part of statute since doesnt necessarily go through bicameralism & presentment, but can be helpful) o Theres another statute carrying a firearm with unlawful intent which D should have been charged under Noscitur a sociis side note on stiletto: knife, not high heels

Current events: Defense of Marriage Act States have the right to recognize same-sex marriages or not Dept. of Justice will not defend Constitutionality of Defense of Marriage Act Signing statement (Clinton): this law is a good idea Now, Obama says I dont consider this Constitutional o Still going to enforce isnt that a problem? Should the president faithfully enforce a law that he considers unconstitutional? Lenity United States v. Bass: Statute: "who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . . ." Q: Does in commerce apply to receive or possess or just transport? 2 Views of Lenity: o Permissive view: When a statute is ambiguous the tie goes to the criminal accused o Restrictive view: Ambiguity must be grievous before lenity is invoked (OConnor in Smith; Muscarello) Dissent: 14

o cannot ascribe to Congress such a gesture of nonaccomplishment surplusage: this statute shouldnt be read to overlap with another statute o Other Substantive cannon: absent a clear statement by Congress, shouldnt read a statute to change balance between Federal & State power Constitutional avoidance: Commerce clause majority may apply commerce to all acts to avoid any constitutional issues o Like the dissent in Catholic Bishop tie breaker reading of cannon Not like Majority will rewrite the statute to avoid any possible potential contact with Constitutional issues

McBoyle v. US: Review of First of Semester Q: is an airplane a vehicle? o Definition: any other self-propelled vehicle not designed for running on rails = Ejusdem Generis Catchall phrase defined & narrowed by elements of list o Legislative history No discussion of airplanes in relation to the statute in Congress Hypo: if Statute was passed before airplanes existed?? Congress could have amended the law to include airplanes later Dynamic Statutory Interpretation: reading old law in view of new circumstances o Lenity: ambiguity read for criminal accused Ordinary people should know what the laws mean in advance (argued by Holmes) Public Choice explanation: Powerful govt vs. weak individuals Congress is more likely change the law if the Govt. loses Congressional Intent: Congress would want lenity Criminal law is different: Public, moral condemnation punishment should reflect moral values of public at large should be careful to reflect public judgment, not just judges

REGULATION AND THE ADMINISTRATIVE PROCESS (ie. Second of the Semester) 15

Delegation and Nondelegation A.L.A. Schechter Poultry Corp. v. United States: Kosher chicken farmers allowed customers to choose specific birds Live Poultry Code: new law regulating sales of poultry o Promulgated under NIRA o Trade association proposed code signed into law by president o NIRA: to ensure fair competition (ie keep prices of goods low) (Side note: NIRA had more pages than all other American statute law up to that point) Ultimate question: who is going to regulate US business? Issue: Are the rules promulgated under the NIRA constitutional? o Art. 1, 7: formal process the rules didnt go through the process, but the NIRA did o Congress delegated to special interest groups & president, ultimately, to make laws Hampton: Congress gave President intelligible principle Congress must give guidance for delegation of power Better for the president to fill in number practical reason: requires expertise & dynamism

Schecter Poultry Global, not just local, dimension in New Deal: some believe international relations matter to SCOTUS this case informed by fascism/Italy/Germany o Another example: some say Brown v. Board has global meaning: if US is going to wage ideological war successfully, it probably shouldnt be practicing apartheid at home Not a straight up application of intelligible principle rule of Hampton Other issues animating courts opinion: o Magnitude of power: enormity of task being given to President too big to outsource o Private groups: this isnt just delegation from Congress to President to engage in lawmaking/implementation/execution; this is one step removed because delegation is to private actors law being made by private citizens o Absence of administrative agency: its a joint effort of private groups and president o Lack of administrative process: no guaranteed recourse method for groups left out 16

When confronted with problem, court usually injects more process especially judicial review - rather than addressing problem head on o At this time, SCOTUS was striking down a lot of legislation as being beyond Congresss commerce power o Fair v. unfair competition: maybe harmful things are more defined and potentially good things are harder to pin down; maybe this gives leg up to those currently in the industry at expense of newcomers Nondelegation in general Constitutional foundation of intelligible principle doctrine? o Theres no mention of delegation in the Constitution o Vesting clause of Art I 1: all legislative power resides in Congress (all means no sharing is permitted, so we cant actually give legislating power to Executive) this seems to be strongest argument for SCOTUS o Art I 7: bicameralism and presentment - but in Schecter, NIRA did go through this process o Separation of powers: there are outer limits to how much collaboration can happen Why do we have this doctrine? o Democratic accountability (Rehnquist in Benzene): legislators are elected, agency heads are appointed legislators have certain responsibilities o

Benzene Occupational Safety and Health Act created OSHA and the National Institute of Occupational Safety and Health, a laboratory to run the numbers (technocrats). OSHAs mission is to ensure to extent feasible employees arent harmed in work place. OSHA created in 1970s because: emerging scientific technical knowledge of harmful effects of toxins in workplace; recognition of unequal power/access to info in the workplace; effort to make life better for working people even if it in a sense taxes industry OSHA says secretary must create standards for health and safety to extent feasible Study links benzene to cancer Standard set for 1 part per million, but excludes people who work at gas stations Best textualist argument that 1 ppm standard is good: cite to 6(b)(5) no employee means no employee and most adequately assures means just that and benzene has been linked to cancer so gas station workers should be protected too

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o Why shouldnt standard be 0 ppm? Statute says feasible. Maybe 1 ppm fits this because agency can oversee it and industry can survive it. SCOTUS says no cost benefit analysis. Or does feasible mean doable? Plurality: 3(8) safe cant mean risk free so reasonably necessary or appropriate must only apply once weve determined theres a substantial risk only then do we get to 6(b)(5) analysis Delegation issue: If statute read in way gov read it, there might be a delegation problem. o Delegation problem if legislature said There shall be no sick workers!? Maybe this takes away need for balancing so Rehnquist would be ok with it. This is less open ended / open to different interpretations that to extent feasible. Rehnquist doesnt like to extent feasible bc invites regulator to make more determinations / do cost benefit analysis in a way that gives Congress an improper way out of its duties. Plurality uses nondelegation doctrine as a kind of avoidance technique, whereas Rehnquist would have used it as in Schecter Poultry to strike down statute. o Reads language into 3 to get out of potential delegation problem. The claim that 1935 was only year in which nondelegation doctrine had legs is a distortion yes, thats the only year SCOTUS struck down law because of doctrine, but its still doing work as a canon of avoidance.

ARS 3/7/11 Benzene Rehnquist: o Would have struck down statute as unconstitutional under non-delegation doctrine because this isnt a technocratic issue that belongs to an agency, this is the rock bottom policy/moral issue that must be made by the legislature. o If latitude that statute affords to agency decision maker were somehow taken out and agency head had to literally make sure nobody would ever get sick from benzene, that would be ok because would no lack an intelligible principle. Rehnquist vs. plurality: o nondelegation as rule by which SCOTUS strikes statute vs. nondelegation reincarnated as canon of constitutional avoidance o Rehnquist concerned about giving too much policy discretion to agency administrator vs. plurality very concerned about magnitude of power conveyed OSHA could turn world on its head 18

Black letter law of intelligible principle vs. concern about magnitude carries through to American Trucking

American Trucking D.C. circuits decision seemed like a revival of 1935 Clean Air Act: Congress gave EPA power to determine permissible level of pollutants o EPA must establish uniform national standards that are requisite to protect the public health allowing an ample margin of safety D.C. circuit conceptual problem: says violation is built into agencys decision, not statute, in which case answer is to send issue back to agency to create intelligible principle for self but if whole principle is that Congress cant punt on critical policy choice, answer to that problem isnt to empower agency to elect to be bound by more narrow version of statute o Maybe D.C. circuit did this because it would have been too momentous to actually strike law on nondelegation doctrine Holding: No non-delegation problem. Requisite is clear enough. o But why is this different from Benzene? Maybe its a magnitude issue (Scalia alludes to this). Maybe when Benzene decided no resolution as to whether CBA can be taken into account, but by the time of American Trucking its clear that CBA cannot be used. Rascoff: Its really not clear. Different views about what power is being delegated: o Scalia: Built into executing the laws is some level of interpretation. Whats being delegated is executive power, not law making power. Scalia is formalist its essential to understand that hes talking about giving away power thats built into executing. o Stevens: What were determining are the permissible boundaries of legislative power that can be given by Congress to some other entity. There are limits about how much and to whom the power can be given, but lets be honest - this is legislative power thats being given. o Thomas: Legislative power, though not exactly talking in Scalia and Stevens terms. Ultimately, not a return to 1935, but nondelegation is still part of the logic of the administrative state.

Bowsher

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Were trying to figure out who is in charge and where the administrative and regulatory state is located. Fundamental issue: person who hires/fires is in charge. This case fits with Chadha nondelegation is about all the things Congress cannot give away, but there are also limits to what Congress can hold on to once theyve created agencies. Chadha and Bowsher are the flip side of the nondelegation doctrine. Comptroller is basically presidents chief of staff on budget slashing clearly acting in an executive function. However, under the organic law that created the comptroller general, the comptroller can only be fired by Congress. When Congress fires executive officials, we call it impeachment. Under the constitution, impeachment is exclusive means by which Congress can fire an executive official. How is this the Stevens opinion same as in Whitman? Same as debate Stevens is having in Whitman with Scalia. o Here, Stevens say lets be honest and recognize that this is legislative power thats being granted. But in Whitman Stevens said that was ok. Why not here? Problem is not giving away legislative power to an agency thats done all the time but here power is being given to the J.V. congress. Majority says comptroller is an executive. Stevens says the problem is that Congress is delegating to one of its own, in which case Art I Sec 7 is not being respected (Chadha problem). o One rational for delegation is to give power to people more capable of making these decisions, and if youre just giving power to junior varsity congress, rationale falls through. o Here Congress keeping second bite at apple for itself, just as in Chadha. o Congress delegating to itself is problematic under separation of powers - selfaggrandizement of one branch without oversight from other branches. Stevens more concerned with this than formalistic issue of executive official being answerable to Congress. What if statute said comptroller serves for a 10 year term and can be fired by president only for cause? o We no longer have problem animating majority opinion (Congress being able to fire executive official). o But, there has to be some political oversight otherwise weve given enormous power to an unelected official, and thats crazy! But we do it all the time (Bernanke) why is it ok to have commissioners on independent agencies serve at the pleasure of themselves? This is an issue of the independent agency. o Whites opinion shows that court declined to deal with this issue in Bowsher.

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Independent agency: usually characterized by lots of commissioners, appointed at different times and from different parties; open constitutional question about who is in charge. Open question for Obama administration: can independent agencies be required to report to head of OIRA on costs and benefits of initiatives and plans for next year? Historically, independent agencies didnt have to do this.

Buckley As per usual, formalist majority opinion, angry functionalist dissent from White. Issue: Firing/hiring of commissioners on independent agency. Commissioners to brand new post-Watergate Federal Elections Commission (FEC) are chosen by president, Congress, and Senate, each of which get two draft picks for commission, and each draft picker must pick one Republican and one Democrat. Problem: Appointment to commission that doesnt go through what formalists say is exclusive mechanism: Constitution says nothing about appointment of officers by Congress. What makes an officer different from an employee? Exercising significant authority not a very helpful explanation. FEC commissioner is at minimum an inferior officer. Here, formalism combined with loose issue of who is an officer.

Appointment and Removal Myers v. United States: Postmaster general was asked to resign refused Q: Does Senate need to consent to removal? o Statute: may be removed by the President by and with the advice and consent of the Senate o Is statute Constitutional? Why is Senate approval important? o Trying to create independent civil service not a system of patronage by the President o Anti Tammany Hall politics Majority (Taft): o 1789: First Congress debates who can hire/fire head of Ministry of Foreign Affairs (State Dept) If they had passed statute: removable by the president

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Pro presidential power: very clear that the position is removable only by president Pro Myers: many members of first congress had intimate knowledge of Constitutions (signers) if they felt need to add statutory language, it must not be clear in Constitution Actual statue passed: in the event that the Pres removes etc Leg. History: Congress was persuaded by Madison that language that Pres could remove was superfluous its clear from Constitution! o Practical considerations: President is given the power under the Constitution for practical execution of the laws At the time of hiring who is better at evaluating candidate for postmaster general? Pres & Senate equally At the time of firing who is better at evaluating his performance? President!! Day to day performance in executive branch ultimately under the president o President in position to monitor the position

Dissent: o Holmes: presidents power to execute is limited to executing the laws that Congress has passed o McReynolds: re-reads leg. history & comes out on the other side o Brandeis: historical practice of state governments at founding pres. Power to fire is in tension with power of states

Myers ultimate takeaway: President has power to remove executive agents High water mark of presidential power Clearest statement of: President is in charge. Full stop. o Pres. power goes downhill from here. Humphreys Executor v. United States: Came out same week as Schecter Poultry another dig at Presidential power o Supreme Court fight against domestic autocratic/tyrannical govt in US (not just WWII Europe)

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President wants to remove member of FTC Humphrey had been appointed by Hoover Roosevelt wanted to replace o Humphrey refused to resign Whats different btwn Humphreys & Meyers? o Postmaster = purely executive o Federal Trade Commission = quasi-legislative Establishes new formula for removal power o Pres. can remove agents with purely executive function o If quasi-legislative, quasi judicial function different FTC is quasi-legislative & quasi-judicial because: o Leg: Reports to Congress Make rules notice & comment rulemaking o Jud: can be special master Agency Adjudication o Not just executing a function overlapping boundaries btwn ex. & leg. Because FTC straddles boundaries, the Pres. shouldnt have the exclusive right to fire Epitome of Independent agency: o Multi-year tenure o Expertise o Removed from politics Senate didnt win president was limited, but Congress didnt get any power to remove from this case o Congress cant give itself power cant aggrandize its power at expense of President but presidents power can be limited

Tie back to Scalia vs. Stevens on delegation (Am. Trucking): Scalia: delegation of executive power o How does Scalia deal with Humphreys test? How does quasi-legislative fit in delegation of only purely executive power? Stevens: delegation of legislative power Morrison v. Olson: Independent Counsel: post-Watergate investigator How to set up Ind. Counsel: Attny general conducts investigation; Recommendation to Special Court; Selected by Judges in DC Cir Job = federal prosecutor, BUT only investigate one case/person/matter 23

Prosecutor = purely executive! (same as mailman) o Not making policy, not adjudicating o Under Myers & Humphreys President should win right?? Majority (Rehnquist): o No! New test: Functional test: is the function so essential to the President's proper execution of his Article II powers? No Dissent (Scalia): o Worried about Ken Star: Accurately predicts Ken Star presidents ability to ensure the laws are faithfully executor is actually hampered by independent counsel

ARS 3/10/11 Can the president reign in the regulatory state and if so how and whats the status of cost benefit analysis (CBA) as technique for creating centripetal energy w/in the regulatory state? How does Congress maintain power over regulatory state beyond legislative veto (which they cant really do, anyways)? Even if legislative veto were permitted, it couldnt be central mechanism o Appropriations: if Congress doesnt like what agency is doing, it can decrease agencys budget o Riders: attach riders to other bills barring certain things (ex: attach to defense spending bill a rider saying that no money can be used to open federal courts to Guantanamo detainees) o Change organic statute that created the agency to chance agencys scope o Oversight hearings: public shaming theres a debate over whether oversight really has much bite o Senate confirmations: can be used as a chit Practical power that the president has over the administrative state: o Reagan is key to ARS: Enterprise of textualism Signing statements Assertion of presidential control over ARS What are Reagans early executive orders about? 24

o E.O. 12291: regulatory impact analysis of any proposed substantial rulemaking accompanied by CBA OMB must receive prepublication reviews accompanied by CBA Over $100 million = significant o E.O. 12498: agencies give agenda to OIRA regarding following year and OIRA reviews the agenda and can give agency more direction this is standing yearly requirement as opposed to 12291, which is rule-specific No real subsequent attack on this unitary executive. Why? Presidents like power. Elena Kagan convinced Clinton not to get rid of the power Reagan had created. Clintons E.O. 12866 (pg. 554): o Sec. 1(a): CBA includes quantifiable and qualifiable issues o o o o Seems like a letting up on CBA / backing off of Reagan order Sec. 3(b) (pg. 556): definition of agency Exempts Pentagon and other agencies related to military affairs from this E.O. Does this make sense? Seems like a valid occasion for CBA. Pg. 557: planning mechanism: annual obligation to report does include independent agencies (Sec. 4(b)) (under Clinton E.O., agencies get free pass on CBA but not this) Sec. 7: independent agencies are now part of the order; president / presidents designee (VP) has power to break conflicts/ties between agencies

CBA: o Dollar comparison pluses and minuses o Ex: pollution regulation: requires businesses to purchase new chimney attachments, compliance/implementation costs, opportunity costs / regulatory costs not taken, employment costs, reduced health care costs (asthma), deaths o Biases identified in CBA: people usually mean its biased in favor of business and against regulation Second order costs: If regulation kills off jobs, can we consider cost of providing health insurance to now unemployed people as a cost? Or too far removed? Revesz: If youre going to count 5 step removed costs, also count 5 step removed benefits. o Example: car industry is regulated re: how much carbon monoxide can be emitted to save us from environmental damage of carbon monoxide poisoning can we count as a benefit the fact that lives are saved because of reduced

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suicides/accidental deaths that used to result from carbon monoxide buildup from cars in garages? Bias not in CBA itself, but at institutional level: OIRA review proposed regulations - it tends to block regulations as opposed to instigating new regulations prompt letters are really the exception Senior discount: Is it appropriate to value all life the same? Conservative antiregulatory people say grandmas life is worth less than young peoples lives. But elderly are gatekeepers of knowledge, make/possess more money, scarce resources are valuable resources (if you only have 3 years to live, maybe each year is more valuable). Possible that to extent OIRA is putting break on regulation it only counters

how gung-ho agencies are. But during anti-regulation administrations, agencies tend to be less into regulating. And there is concern about agency capture. Administrative state came into being to get around capture and other problems, but at this point seems like its not still filling that role. o Potential normative problem with CBA: theres too much out there that we miss putting price tags on peoples lives, actuarial view of humans is insulting / wrong conceptual foundation for thinking about regulatory regime But whats the alternative? A more qualitative approach? Seems difficult to pick right monetary value for different costs and benefits it should be a values project, not a science/wonky/economic project. [Independent agency: Can president fire head just because, or only for cause? Does it have commission in the name? ]

ARS 3/21/11 Basic structural questions about administrative and regulatory state Who is in charge? What is constitutional status of ARS? Angles: o Who can fire whom? o Non-delegation doctrine

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o What does OIRA w/in OMB do and how does President try to assert more robust policy control over administrative state (initiative embraced by Democratic and Republican presidents alike)? Judiciary Today is last discussion of separation of powers and big constitutional questions: what role do courts play in all of this? Caveat: what were talking about today is courts not as supervisors of ARS, but as alternative to / in relation to administrative state CFTC v. Schor Whether CFTC (Commodity Futures Trading Commission) can hear common law counterclaims CFTC has oversight over items like oil [and pork bellies!] CFTC has authority to deal with reparations procedures (individual can move against broker to recover money from broker who failed to carry out transaction) Judge-figure for reparations procedure: ALJ (administrative law judge) a kind of bureaucrat If youre unsatisfied with ALJs decision, you appeal to a commissioner (standard of review: de novo) Issue here: Congress in 1974 gave ALJ power not just to adjudicate claim that arises under statute itself but also counter claim which may arise under state law o Individual says he bought Twitter stock, broker says no, and furthermore, accuses individual of fraud (falsified screen shot) is it ok for CFTC to hear the fraud counter claim? Does this take away too much power from judiciary? o Seems logical for CFTC to hear counter claim fits with one logic behind administrative state: desire for efficiency and expertise. o Art. III courts provide more protections: impartiality, life tenure, insulation from politics. But why do we care about this only for counter claim and not initial claim? o Majority erodes distinction bw public (created by Congress rights didnt exist prior to intervention of Congress, so Congress can circumscribe the right) and private (common law) rights: Congress can say reparations complaint goes to ALJ bc right created by Congress In place, majority says to look to nature of right (here, there isnt a big expansion of power its not like ALJ is now hearing criminal issues) OConnor majority opinion is functional 27

Dissent (Brennan): formalist I thought when Constitution gave federal courts power to adjudicate claims, theyd adjudicate claims now youre telling me sometimes ALJ will! Focuses on diminution of judiciary. This is similar to formalism of Scalia in Morrison! Critique of functional encroachments. Based on this holding, why cant individuals trade away rights? That goes to heart of constitution individuals dont have the right to trade away. Comparison: Congress cant give away line item veto right to President.

Benslimane & Immigration Issues [recording of oral argument] Ashcroft press conference: IJ (like an ALJ in immigration context) decision is subject to review by BIA efficiency achieved by having only 1 BIA judge instead of 3 hear most cases, firing half the judges, BIA doesnt have to review factual record or write a written opinion/reason in which case what really happens is massive inefficiency is created, and manifests itself in appeals court Maybe we can have administrative state be as silly as it wants since at the end grown up (Art III appeals courts) show up and fix things? But Art III judges are quite deferential to lower decisions. Fed appeals ct judges cant save the day for everyone. Maybe its not technocracy, but politics, thats the problem Ashcrofts plan (except reducing size of BIA) would make sense if the judges were competent, and thats a political issue.

APA APA is a statute, but different in that it supplies something like a constitutional framework for the administrative state supplies legal architecture APA sets out rules/procedures when agencies regulate in 1 of 4 possible ways 551: definitions: o (1) agency: does not exclude independent agencies o (4) rule: if you engage in rulemaking, you end up with a rule something where the agency is regulating in a pseudo-legislative mode has more of a prospective focus (we will now regulate mercury as follows) o (6) order: if you engage in adjudication, you end up with an order ALJ or commission resolves a dispute statute defines order as basically anything thats not a rule the universe of orders is very wide (ex: recall of a drug by FDA doesnt look like result of adjudication, but its not a rule, so its an order) 28

Informal

Formal

Rulemaking -553 -notice & comment: FDA decides menthol cigarettes are dangerous and want to issue rule eliminating them, so they issue notice to world of intention to make rule, put it in Federal Register, industry/activists can then weigh in, then if agency decides to go ahead w rule its published again including gist of comments and explanation for why it decided to do what it did -556-557 (were directed here by 553(c) when rules are reqd by statute to be made on the record after opportunity for agency hearing)

Adjudication -no provision of APA for this!

-554, 556, 557 -looks most like a court proceeding

ARS 3/23/11 APA Rulemaking -553 -556-557 Adjudication -no provision of APA for this! -554, 556, 557

Informal Formal

What do you get when you get formal process? New Dealers wanted regulatory state to stand on its own so created formality, process, structure, such that administrative state behaved plus/minus like a court. o Unbiased tribunals (556, 557): but agencies are policy makers, not judges ALJ is employee of the agency which has distinct interest in adjudication o Notice of proposed action and grounds (554(b)) o Opportunity to present reasons why proposed action should not be taken (556(d)) o Right to present evidence, including right to call witnesses (556(d)) o Right to know opposing evidence (556(d))

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o Right to cross examine adverse witnesses (556(d)): example management can cross examine NLRB o Right to decision based exclusively on evidence presented o Right to counsel o Tribunal must prepare record of the proceeding o Must prepare written findings of fact and reasons o 557: regulated agency has right to appeal

Florida East Coast Railway Two types of challenges: o Substantive authority of agency to do what it did: agency exceeded its authority by doing what it did (well get to this with Chevron) o Process not being followed / wrong type of process being applied: railway says gov regulator (ICC Interstate Commerce Commission) ICC was trying to regulate market failure: too few freight cars, cars not in right place at right time so gov trying to manipulate market so cars would be in right place at right time o Began to do so through formal process of rulemaking o But Congress complained that process was taking too long Like the peanut butter fiasco (can you call yourself peanut butter if youre only 78% peanut?) o So ICC decided to do it in more informal fashion, which means railways loose lots of rights to be heard Regulated entity now challenges rule saying it didnt get chance to tell its story through formal mechanism Statute says that ICC may establish rules after a hearing so railway says ICC required to use formal rulemaking But SCOTUS: you need on the record and after an opportunity to be heard in the statute to get 556/557 formality o Courts reasoning: if Congress wanted something to fall under 556/557, they know how to other statutes contain the requisite phrase, this could have also if Congress wanted This opinion stands for the end of formal rulemaking! Constitutional distinction bw adjudication and rulemaking: o if gov (ICC) imposes tariff on everyone and they set a rate that applies to everyone in 30

the business that is keyed to a schedule, SCOTUS under Londoner and Bi-Mettalic would be inclined to say no extra right to petition gov bc your railway was treated same as everyone elses (its a legislative act in the sense that its a rule of general applicability) no extra due process right to be heard o but if you are singled out (because of where you live, what type of corporation you are, etc.) and treated differently from other entities (ex: heres the rule for FL East Coast Railway) you get due process protections of adjudication o Douglas dissent is based both on APA and this constitutional distinction APA, although a statute, its necessarily subject to normal statutory interpretation (even textualists will look more to precedent instead of text) Why does it take gov so long to solve problems? A company would solve these problems really quickly. FL East Coast focuses on this system is broken if it takes so long to make a decision. But now that formal rulemaking is extinguished, informal rulemaking becomes more formal.

Nova Scotia Food Products Corp. What notice and comment rulemaking has come to be in light of FL East Coast Challenge to enforcement action taken by agency to shut down Nova Scotias ability to produce white fish (unusual challenge usually comes as soon as rule comes out) Some entities actually commented on proposed rule o Commercial fisheries agency intervened saying this rule will kill the industry because fish will no longer taste good o Nova Scotia says rule should be fish-by-fish (temperature may be good for one fish, but not white fish) Agency did follow notice req, comment req, and rule actually did incorporate some of the comments seems to follow 553 2nd Cir.: FDA didnt get 2 things right: o agency must show its math for judicial review at the back end there must be a record that court can base review on 553 requires that notice be given to potentially regulated entities if agency has science theyre basing their proposed rule on, they have to include the science in the notice its part of notice and meaningful comment requires it o 553 requires concise general statement: court wants to see that agency has internalized the comments (can accept or reject, but must give explanation for why) 31

Problem: ossification of rulemaking: what was supposed to be efficient way to make rules is now elaborate process based on plausible but not necessary reading of the APA If the railways are about peanut butter, white fish is about capture. o White fish is about capture: often concealed in agency making process are biases because of capture (steak lunches) show me the math allows us to have confidence that agency is actually regulating on behalf of public instead of based on capture by special interest

ARS 3/28/11 Chenery (adjudication) Case comes down around APA passage, but facts predate APA so no reference to adjudication under APA nonetheless, Chenery endures as binding precedent in post-APA world Congress passes law empowering SEC to redo corporate structure of public utilities. Federal Waters had 2 different types of stock preferred (gets dividends) and common (gets to vote). Chenery held most of power over common stock, was essentially in control of Federal Waters. Congress says SEC can either reset company or company can come forward to SEC and present plan on how its going to effectuate statute and SEC can approve or deny the companys volunteered plan. SECs decision is adjudication, results in order. SEC says no to companys plan. Plan is not fair and equitable. o Fair and equitable comes from statute very vague, threatens nondelegation doctrine. Case not decided on this basis, but worth noting. SCOTUS in Chenery I: o SEC decided case based on circuit and SCOTUS precedent, but court held that theres no judicial basis for striking plan down. o Because SEC cites to judicial precedent, we limit ourselves to that judicial precedent, and dont entertain SECs policy argument for their decision. Why? Judicial review of administrative decision making is lmtd to reasons/record that drove agency determination no new evidence/rationales. Why? No surprises in court. Chenery II: Understanding that SCOTUS will only make decision based on reasons that drove determination, SEC says same outcome as before can be reached with new teaching: when company undergoing reorganization, the shareholders who control the company have 32

extra responsibility not to undertake certain transactions that might benefit themselves and hurt others. Basis for holding? Statute itself 11(e) and 7(d). o Question 2: Can agency permissibly announce new rule through adjudication? Issue is that Chenery had no notice that rule was going to be changed in middle of game. But SCOTUS says thats ok statute says SEC adjudicates (thats how Congress wrote the statute). It remains ok for agencies to change things like this through adjudication. Why would NLRB want to make changes through adjudication instead of rulemaking? Easier, more flexible labor is too politically heated to go through rulemaking process. NLRB has thus historically always used adjudication. Fundamental weirdness: agency is doing same thing it does through rulemaking, but doing it through more microscopic approach same change in the world, different approach Jackson dissent: Obsessed with authoritarianism because just back from serving as lead prosecutor at Nuremberg trials. What if NLRB wants to change policy based on politics? Stay tuned Rascoff clarification: If agency had done this through N&C rulemaking, no issue in front of SCOTUS. Really? As long as its a plausible interpretation of the power Congress conferred on the agency.

Londoner and Bi-Metallic How does Holmes in Bi-Metallic create distinction between Londoner and Bi-Metallic? Holmes intuition: You get due process (DP) in some circumstances, but not others. DP comes up when an agency decision has a disproportionate effect on a small group of people then people have right to petition agency and be heard from. o Why? In part: too many people to hear from (efficiency / gov administration problem cant give every person in Denver right to petition re: tax increase). Mainly: political process failure issue small groups dont have ability to do battle, so we empower them and let them take fight to court or agency Also, epistemology: how illuminating hearing from people is usually more illuminating in case of adjudication than rulemaking its not helpful to have everyone in Denver come say they dont want to pay more in taxes, thats obvious

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Bi-Metallic: everyone hit with 40% tax increase no DP bc politics takes care of the problem (politics as alternative to DP) If were talking about what DP ought to look like, weve already decided that were in Londoner world, where DP is relevant once were in Londoner world, we can move onto Goldberg analysis

Goldberg v. Kelly How do we think about DP in world in which private v. public sector distinctions no longer apply? Longstanding distinction in DP jurisprudence had been rights v. privileges, but that has been weakened. Public benefits no longer viewed as that different than other rights court becoming more willing to look at spectrum of rights. Brennan majority: o Backdrop: Deprivation of stream of payments from gov as deprivation of property. o Do you get pre-deprivation hearing for termination of welfare benefits? Yes. o Why pre-deprivation? This group of people do not have access to lawyers, they arent going to go on post-deprivation letter writing campaign any chance to wage meaningful challenge must be face to face and pre-deprivation. Will this make welfare recipients worse off bc now gov agents who would otherwise be forthcoming with welfare will be hesitant to put ppl on the welfare roles because of how hard it is to get them off? Dignity! Process not as Watson (robot), but as individuals right to have recourse against gov. In most cases, post-deprivation is good enough, but if you wait extra period of time for welfare recipients, youre really not giving them anything at all.

Matthews v. Eldridge Goldberg experiment is over, even though Court says its hard to distinguish Matthews against Goldberg. How does court distinguish very poor people from very disabled people? Seems like very similar group. o But you can be rich and disabled, whereas you cant be rich and on welfare. o Disability benefits more based on objective expert information. Technocracy/expertise/science as compensation for absence of process (like political process as replacement for DP in Londoner/Bi-Metallic cases).

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Sally Katzen, former head of OIRA Ex. Order 12866: Centralized review for a long time at least to Nixon Administration Agency head is not elected, so it is important for review at the presidential level Nixon institutionalized review in OMB, OIRA Regulation under Reagan o Instituted cost-benefit analysis o Not transparent Democrats hated not reform, but relief

Why centralized review? Example: o EPA focuses on pollution largest polluter is cars Would want smaller cars less pollution o NHTSA focuses on car safety Larger cars are safer o How to balance both interests? Clinton: Ex. Order 12866: Some changes: o Dont review all rules only important rules o More transparency Records of meetings Send records to public docket o Tried to stress benefits, which are harder to monetize than costs Lasted through Clinton into Bush o Minor change = VPs role

Bush amended: politicized review Slightly more deregulatory Obama rescinded Bush amendments Back to Clinton Ex. Order Directive to OMB for recommendations for new Ex. Order

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2010 elections: Business asked for changes to Regulatory state Effects on job creation, competition, innovation Obama executive order: The regulatory state should promote public health, the environment. Innovation, job creation, etc Reaffirms centralized review & role of OIRA Whats it like to be at OIRA? Under the radar Autonomy Reviews all executive branch orders not independent commissions

Challenges from agencies: If data, assumptions were faulty, etc send comments to agency Often, agencies would agree Sometimes, agency pushes back o Elevation: staff raises issue to managers, eventually to Administrator Administrator calls politician in charge of agency o Fluid process Prompt letters: rare Agencies are normally raring to pass regulations dont normally need to prompt them Lobbyists: Money use $ for access Information help craft the message Cost benefit: Costs are easier to monetize than benefits, but some benefits are essential Flawed, but nothing better Independent commissions: 80s: Reagan wasnt willing to take big steps 04: OLC reaffirmed that there were no Constitutional issues o Political reasons: 36

Viewed as independent Congress views as special, congressional babies IRCs shouldnt be handmaidens of President, but also dont want as handmaidens of Congress Different environment? o Dodd-Frank requires hundreds of rules from IRCs who will review?

Is OIRA review a substitute for judicial review? No courts have a different function Courts have a broader view than OIRA can hear issues that OIRA cant It takes a village to raise a child OIRA, courts & Congress

ARS 4/4/11 Due Process How does elaborate machinery of state interact with life of individual welfare/disability/etc. recipient? Goldberg: due process as way to uphold individuals dignity Matthews v. Eldridge: due process as way to get right/better results Hamdi Gov briefs: Constitution gives president power to act this way in name of war US picked up many detainees in course of war, but Hamdi is American (born in US, raised in Saudi Arabia). What happens when US citizen is picked up in battle field with powerful evidence that he was fighting against US? First, Hamdi was brought to Guananamo Bay, then US realizes hes American citizen and decides they have to get him out gov doesnt want to infect Guantanamo with American, who has habeas rights. Hamdi brought to naval brig in US. Detention is used in war to incapacitate, and for interrogation to extract intelligence. Hamdi says hes an American with due process rights cant hold him without being charged and prosecuted. Holding basically splits the baby: OConnor says no to gov being able to do whatever it wants, and no to Hamdis argument that he should be treated like any other American picked up in America. o Use Matthews test: 37

Interests of Hamdi: liberty and freedom not being held w/o access to lawyer, etc. Interests of gov: keeping Hamdi off the battle field, getting information Risk of error: high risk of confining aid workers, UN officials, journalists, etc. we need DP to avoid detaining these innocent people o Court begins to chip away at absolute war powers o Due process: Hamdi doesnt get everything he doesnt get full trial, opinion doesnt say he has to get his due process in a court house.

Judicial Review of Agency Policy APA 706 Scope of Review 706 (1): Court can compel agencies to do things theyre not doing (think about how this relates to compel letters) 706 (2): Court can hold unlawful and set aside agency action and findings o (E): in cases of 556 or 557 (formal proceedings), court can set aside action if its not based on substantial evidence this standard makes sense for formal proceedings, were we have a formal record to examine o (B): contrary to constitutional power (ex: if it violates due process think about Hamdi scenario) o (D): without observance of procedure required by law (ex: if agency issued rule on day comment period ended, without reviewing the comments it had received) o (A): in cases of N&C rulemaking or informal adjudication, court can set aside action if its arbitrary, capricious, or an abuse of discretion court is not criticizing agencys power/authority to act, but rather what they ultimately concluded rule doesnt pass test of plausible policy outcomes in this area unclear what arbitrary and capricious actually means used to mean government always prevailing unless its outlandish then courts feel compelled to do more searching review Why did courts change how they reviewed? Awareness of agency capture, rise of public interest litigation Ethyl Corp v. EPA N&C ( 553) rulemaking leads to new rule about permissible amount of lead in the atmosphere under the Clean Air Act 38

EPAs limit is challenged by big gas stations under arbitrary and capricious standard of 706(A) Majority: Holds in favor of EPA. There is a rational that supports this conclusion (its not the only rational, and other conclusions could be supported, but thats ok). Theres a meansends rationale here. Scientific inevitability isnt required, just plausibility. Dissent: Agencies must make decisions in way that reflects complete chain of logic must explain methodically how scientific study gives rise to this rule, its a no-go. Leventhal statement: technocratic view judges should supervise science o Judges are capable of educating themselves about technical issues (example: patent cases) Bazelon concurrence: wants to proceduralize arbitrary and capricious review, judges job isnt to focus on science Over time, Leventhall opinion has tended to win out. Called hard look review agencies and courts should take a hard look at whats going on.

Overton Park SCOTUS: Were doing hard look review. Federal gov wants to built interstate east-west highway through Memphiss Overton Park. Issue: Secretary of transportation cannot built interstate through park if it is feasible and prudent to build it somewhere else. Claim is that secretary did not consider feasibility and prudence of other route, engage in all possible planning to minimize harm if he did decide he had to go through park. This appears to be informal adjudication. Judicial Review of Agency Policy Arbitrary & Capricious standard: Embodies a lot of administrative law Its where the action is in Admin. Law the capacity of the court to review agency action under the A&C standard Vexing & unresolved Overton Park: Courts first stab at arbitrary and capricious Standard in statute: Cant build through park without determining if there is a feasible & prudent alternative o Policy = all else being equal, parks should be preserved 39

Without Congress statement it would always be cheaper to route a highway through a park than an neighborhood Congress policy changes incentive structure Seems like Secretary ignored directive choice to route through park was obvious Secs action: not a rule, so must be an order p.823-24: must consider relevant factors and whether it was a clear error of judgment o Confusing: sounds like APA 706 fact-finding o Substance or process? Substance not about the science behind the decision, but whether the decision was correct & sound BUT Court goes on to say that process is important o And remands case to district court to fill out the record Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. o Substance, process, dont intrude on agencys domain, but review is searching covers all bases Process for informal adjudication: o Not much in the APA, but agency must pay attention to the directive in the statute there must be a record

Nova Scotia through the lens of Overton Park: Nova Scotia looks like proceduralist view of arbitrary & capricious Not 556, but 553 but process based Ex-Ante, what should Secretary have done? How should he have insulated himself? Process: o Hold hearings, call meetings, go to Memphis o Record minutes Seatbelts: 1965: 50K deaths per year 1966: Nat. Traffic & Motor Vehicle Safety Act o created NHTSA Nader: car accidents are social issue o Cant be fixed by criminal or tort systems Nixon: Pro-business

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Process: Informal Rulemaking: APA 553 Background: Passive restraints: automatic seatbelt or airbag one or the other Proposed rule: Rescission of automatic passive restraint rule o Justification: expectation was that 40% would put in airbags, but actually, almost every mftr put in seatbelts and most people unbuckled seatbelts not a lot of safety benefit Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.: Rule = rescission of a rule o Deregulation is still a decision rescission is judged by the same standard as affirmative rule Not restoring free market baseline like Reagan Administration argued baseline is status quo before the decision Standard of review: Arbitrary & Capricious Agency screwed up with regards to Airbags decision not to modify rule to require airbags only o Process or substance? Process defect: should have re-run the numbers & safety tests knowing that all mftrs would choose seatbelts Process requires agency to consider all alternatives

ARS 4/11/11 Judicial Review of Agency Policy Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Air bags were patented in 1953, so not new technology at this point Part I of SCOTUS decision: agency failed to even consider momentarily the fact that contrary to initial suppositions airbags were being deployed in only 1% of cars so maybe they needed to rethink the principles that went into initial passage of rule and consider more mandatory regime instead of recision Part II:

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o Notice of final rule amending standard 208: impact analyses included as CBA as result of EO 12,291 o Agency thinking: use rates of automatic belts same as manual belts - 2 studies initially used give us nothing so agency is left w/o anything to go on in way of clear benefit of this rule, and with understanding that rule has clear cost (cost to industry or consumer of installing belts) so recision is appropriate o Court: Agency should get more data/science! Furthermore, our own science leads us to believe that path of least resistance (inertia of not undoing automatic belt) means there will be greater use of seatbelts with automatic belts. Decision illustrates process and substantive aspects of hard look: Procedural hard look review: agency should have considered air bag issue instead of just ignoring it (imposing requirement on agency to examine things more, show court some work) We also saw this in paper hearing requirement in Nova Scotia and in some of Overton Park pronouncements (requiring lower court to develop a record) Substantive hard look review: court sharing its own view on the problem in terms of inertia issue Title: Why is State Farm suing? Economic interest of insurance company in keeping people alive longer. Arbitrary and capricious: o (1) Agency relied on factors Congress didnt intend it to consider: Ex: airbags destroy cars aesthetic Link to Chevron: when agency acts outside parameters given by Congress, court will not give deference o (2) Entirely failed to consider an aspect of the problem (airbag) o (3) Explanation runs counter to evidence (seat belt usage) o (4) So implausible that it cant be ascribed to a difference in view or agency expertise Rehnquist dissent: in world where science isnt conclusive and judgment calls are required, its ok for politics to make these decisions

FCC v. Fox Can FCC change its rule to include fining networks for all swear words, both when theyre expletives and referring to actual things? Fox says agency hasnt explained change based on new circumstances (ex: new study about children being profoundly affected by even fleeting expletives). 42

FCC says change is based on changed morals, first blow / slippery slope argument (if we dont come down hard, everyone will be using fleeting expletives), new technology (easier to bleep things out now). Can a new presidential administration be more dedicated to ridding society of dirty words? If science not clear, give agency discretion? Let politics do its work in some places (like transportation dept) but not when independent agency is in charge, like here. Case offers review of Stevens view on delegation: for Scalia, whats delegated is always executive power, but Stevens always clear that when Congress delegated its the power to legislate ARS and Reagan revolution: Reagan reinjects politics into regulatory state, so, like early on under FDR, becomes impossible to think of regulation outside politics, and grappling with arbitrary and capricious is happening w/in this context Link to Chenery, though here, while FCC is willing to call out Fox, did not impose a fine based on sense it was unfair to fine because of rule that is just being created

Judicial Review of Questions of Law Judicial review of questions of law should be more straightforward this is what courts do How much latitude should agencies be given?

Pre-Chevron: NLRB v. Hearst Statutory interpretation question: Whether newsboys are employees (consequence: if yes, they have right to bargain collectively with management) NLRB, which administers the statute: newsboys are employees Should NLRBs interpretation count? How much should it count? SCOTUS: There is a difference bw pure questions of law and mixtures of law and fact. As to pure questions of law (theoretical questions), court as opposed to agency is the decider. o Pure question of law: Court does not pay attention to NLRB bc agency has no particular expertise. o Law and fact (actual circumstances of how to treat this particular employer/employee): What NLRB thinks matters a lot where resolving issue requires intense factual scrutiny. Why do we organize administrative state in way such that courts think its cool to scrutinize agency policy making but less so agency statutory interpretation?

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ARS 4/13/11 Pre-Chevron Jurisprudence on how courts deal w/ agency interpretation of statutes Interpretation of the agencys organic statute, not just any statute NLRB v. Hearst has been largely displaced by Skidmore/Chevron isnt cited to anymore Skidmore is still in play where Chevron does not apply, can still look to Skidmore Skidmore Does waiting time = working time for purpose of overtime under Fair Labor Standards Act? Dept of Labor has set out guidelines Administrator: no pay for sleeping or eating, but yes for playing pool while sober (bc if not at work, would be having beers too) Pure questions of law: o Hearst: as to pure questions of law, no deference to agency court does de novo review o Here too, no deference on pure question of law: Is it really the case that working time can never encompass these sorts of activities? Answer: Statute on its face does not preclude this. Mixed law-fact question: o Hearst: limited role for court o Skidmore: Skidmore deference Skidmore deference: Defer if explanation is thorough, consistent but thats not deference, that just makes sense! If ct agrees with agency when agency is persuasive, thats just agency filing a brief and court saying theyre right. Couched in these terms, Skidmore deference seems like a banality not really deference if youre right about what statute says, you dont need deference. When court defers to agency in Skidmore sense, the opinion has stare decisis precedential value. End result is opinion that says the statute means X. Important consequence: Dept of Labor is foreclosed from waking up tomorrow and deciding eating is also work Dept of Labor cannot move from SCOTUSs interpretation.

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The Modern Framework: Chevron Chevron Ct is attempting to decide whether Clean Air Act, administered by EPA, means that pollution should be based on individual components or whole plant/bubble? EPA decision on best way to read Clean Air Act: bubble concept o Bubble is Reagans idea industry likes, environmentalists dislike Holding: o Step 1: Is statute clear? If so, thats what goes. To extent agency is in agreement with clear unambiguous intent of Congress, agency prevails but court hasnt deferred to agency. No deference at Step 1 straight up statutory interpretation case! What does it mean for Congress to speak unambiguously? FN 9 Use traditional statutory interpretation (text, purpose, legislative history, canons, etc.). o Step 2 [we get to Step 2 if statute is ambiguous under Step 1]: Is agencys interpretation of the statute reasonable/plausible? If so, defer to agency. Why are we deferring to agency? Arent judges typically considered experts on statutory interpretation? Interpretation doesnt become binding law, unlike Skidmore. Deference doesnt make agencys interpretation law, it just recognizes that interpretation falls within range of the plausible. Scalia loves Chevron, but never gets to Step 2, because says statutes are always clear! Canonical theoretical interpretation of Chevron: Think of ambiguity as deliberate choice that Congress makes were not being clear about X because we want you, agency experts, to make the decision within a range of possible options. Ambiguity not a flaw in statute. Thus, not an assault on role of judges to decide what law means (and thus not a counter-Marbury). If were in Skidmore and boss asks what you can do, answer is here is what law says we can and cannot do. In post-Chevron world, memo outlines range of possibilities that fall within acceptable bounds.

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ARS Notes 4.18.11 Overview: deference takes 2 forms: What gives Chevron its normative force? expertise Why do we even have an administrative state? We need agencies to supply expertise. Chevron recognizes that expertise must be brought to bear to interpret statutes Agencies are not only experts at science, but at interpreting their own laws o Judges do not live and breathe agency statutes Accountability Agencies are accountable to executive branch Political accountability subtext: shifting from Congress as politically accountable actor to agency as politically accountable actor Newness o Anxiety about evaluating administrative laws o Scalia thinks that everything has an answer at step 1

Coordination If different courts decided same statutes differently, agencies would be guided poorly about what they can/cant do Ie cars are usually made to most stringent regulation (often CA) Administrative law is different from criminal law because different regulated entities An AA can only have one uniform policy throughout the country, but criminal courts can treat criminals differently Scalia: its executive power being delegatedincludes interpretation of law Stevens: lets be honest its legislative power Politics plays a big rolethats a virtue o Political accountability through agency heads and electoral process Chevron allows courts to avoid making politically contentious decisions

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Babbitt v. Sweet Home Chapter of Communities for a Great Oregon Issue: regulation that protects endangered species Majority issue: definition of word harm Dissent issue: definition of word take 9 of statute prohibits tak[ing] species 2 techniques from Congress to o prohibitions on taking- not just public land, but private land too o fed government can buy land and maintain habitat Interior Dept defines harm which is part of definition of the word take to include habitat modification without necessarily killing any animals BUT Take requires actually killing or injuring wildlife BUT: Harm is significant habitat modification/ degradation where animals have been injured or killed Court looks at plain meaning of harm: to cause hurt or damage, to injure Dissent: take means to injure actively to kill with an act not omission, with intent to kill the endangered species Which way do canons cut? Take is defined by Congress! How do we know what harm means? o Its an act relative to the specific animals o Noscitor a sociis: all other words are muscular, intentional words, so harm must be too Surplusage cuts other way. The other words have a more muscular character, but harm is open to a more flexible interpretation If harm had the same meaning as the other words in the list, why would Congress have added it? Majority opinion: step 2. Court looks at reasonableness Scalia dissent: its step 1! Statute is clear enough for judge to decide

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Its easier to win at step 2 because its just a nebulous reasonable stand, where as winning at step 1 is harder because you have to convince the judge that the statute clearly supports your position Clarity v. ambiguity If take = harm and harm is part of a laundry list of things, we need canons to figure out what harm means Were in ambiguous territory Issue seems clear on one side: can you punish a farmer for using pesticide that hurts the bald eagle? The pesticide hurts the eagle It might not be clear to everyone because harm could encompass many innocuous activities-like driving MCI and Tobacco Case Applications of Chevron doctrine At what point of the Chevron analysis it appropriate for court to look at purpose, legislative history, congressional intent, etc. outside of text of statute? Both cases point in direction of non-delegation FDA v. Brown & Williamson Tobacco Corp. FDA decided to regulate tobacco, even though previous policy was that they have no jurisdiction. They had never regulated it before. Rationale: nicotine is regulable as a drug under FDAs organic statute. o Therefore cigarette is a drug delivering device, subject to jurisdiction of FDA Jurisdiction= subject to FDAs authority to regulate FDAs purpose: not a ban, but congrete regulations: Labeling Checking IDs Youth smoking Advertising o Ie no Joe Camel in the ballpark Elena Kagan had idea of Presidential Control over regulatory state. President Clinton embraced as his anti-Youth smoking platform 48

Objective of FDAs organic statute: Keep the public safe Regulate potentially harmful drugs o Approve new drugs o Regulate existing drugs Includes power to ban harmful drugs Science has changedwe know more about harmful effects of tobacco Agency is changing its policy focus under the same statute Breyer dissent: new administration, new political agenda is OK to warrant a new policy Just like Rehnquist in State Farm

FDA action could be changed as interpretation under Chevron and as Arbitrary and Capricious Court: no ambiguity in statute. Congress did not intend for FDA to regulate tobacco. Statutory language FDA has authority to regulate drugs, which are articles (other than food) intended to affect the structure or any function of the body. OConnor opinion: its clear that nicotine fits into that definition, and there is no safe way for nicotine to get into the body If its a drug, FDA has to ban it (regulate it out of existence) o Congress doesnt want to ban it. It has developed a whole separate regulatory system that does not include a ban. Congress has assumed for the purpose of other laws that there will be a tobacco industryFDAs reading of its organic statute can not be squared with this reality If FDA does something short of regulating nicotine out of existence, it would be contrary to intent of Congress, and A&C FDA has been saying that it doesnt have jx, and Congress has been building that assumption into its regulatory framework FCLAA: statute passed to regulate advertising of tobaccowhat the FDA wants to do 49

After case, Phillip Morris supported regulation of nicotine Breyer Dissent: 1. read the organic statute! 2. FDA mandate is to regulate in public interest it doesnt have to ban it immediately, can take half way measures] o cited harmful chemotherapy drugs Congress left the world as it found it Key passage for OConnor P. 875 it is unlikely that Congress would give this kind of power to an agencyits the fate of the tobacco industry It is TOO BIG an issue for Congress to delegate to an agency o Congress should decide this issue for itself Breyers response: FDA is politically accountable too FDA Commissioner works for President o People will see Bill Clinton as responsible, not Clinton The bigness of the issue cuts in favor of FDA making the decisionit was Clintons policy! Political actor will be subject to the will of the people, just like Congress Congress loves punting like Chevron o they like political heat to focus on administrator, not them OConnor best answer: this is not empirical point, but normative pointCongress should make the big decisions In Chevron cases, always ask yourself: what step are we at? For OConnor, its clearly step 2: statute is unambiguous What would the opinion look like at step II? Congress must speak to the issue specifically and if they dont, agency gets to decide

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Rascoff: this case is neither step 1 or 2 MCI and FDA are different kind of step 0its a too big to be delegated and too big for Chevron machinery o Therefore, unpersuasive step 1 opinion Difference between how FDA and MCI courts reach too big to delegate question MCI Telecommunications Corp. v. AT&T Statute regulated telephone companies They have to file their rates with the FCCa disclosure regime o Classic justification for regulation: to get good information FCC can modify requirements for disclosures FCC has eliminated requirements for everyone but AT&T, to regulate their monopoly o All new entrants into market, like MCI, are competitive because they have not enjoyed historical monopolies FCC relaxed the requirements for new entrants FCC understood its actions as modifying requirements Its either obviously within agencys policy at step 1 Or its a reasonable interpretation at step 2 Majority opinion Dictionary battle Websters Third International Dictionary : a fighting document, panned by critics Modify can mean eliminate most dictionaries associate modify with incremental change instead of elimination Is the issue too big for an implicit delegation from Congress? this analysis is more closely tailored to the language dissent statute has a purpose elimination stays true to purpose behind the statute 51

o dynamic statutory interpretation suggests relieving MCI of need to report FDA this case is like Benzenecouldnt have expected Congress to delegate fate of an industry to an agency court avoided reading statute like thatconstitutional avoidance with non-delegation justification o otherwise, Congress would have done something that it should not have done. Chevron should function as a canon of avoidance We dont expect/want Congress to delegate in such a high stakes situation, so we read statute to avoid agency getting delegated too much power FCCs action would undue the entire regulatory scheme set up by Congress thru the little word modify ARS is generally about the spaces, silences left by Congress, so we get concerned when an agency is doing more than filling in the blanks/definition

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5/15/11 10:30 PM Step Zero Tentative step zero = FDA, MCI Accepted step zero = Mead Q: Is the subject matter a good fit for the Chevron doctrine at all? FDA: maybe regulation of Tobacco is too important for Congress to have delegated by ambiguity to the agencies MCI: not as much a magnitude case, but still a fundamental issue Mead: Chevron is not automatic requires something more: an issue that is suitably proportioned for Chevron analysis United States v. Mead Corp.: Q: does Chevron apply to agencys interpretation of tariffs on diaries? o Day planner historically: not a diary, not subject to tariffs; But Customs changed its mind Ruling Letter any office can issue, only applies to one thing at a time, (not categorical) ~10K issued each year, to change issue a new letter, not much reasoning in the letter itself Informal Adjudication no formal processes o Majority: Chevron doesnt apply Rulings lack the force of law No Chevron, Skidmore deference instead 1) Force of Law doesnt have precedential weight o low level stakes, no consistency, transparency o Need evidence of Authority - process 2) No Chevron deference lack of procedures indicates that Congress didnt intend deference o Indications of Congress intent: evidence of power in organic statute formal processes, notice & comment procedures, some type of structure Presence of authority & authority used! Must be a manifestation of that authority This informal adjudication was not enough

3) Skidmore deference Connection btwn Chevron & Force of law: Why does mandated process lead to Chevron deference? o Majority: Ambiguity is not enough ambiguity + force of law delegation Scalia Ambiguity deference (automatically) o Procedural safeguards o Delegation of Legislative Power? Congress wants Agencies to go through the equivalent of the deliberate process that Congress does

Art. I Sec. 7 formalism? o Accountability if you dont follow process, you dont get a free pass to Chevron deference o Scalia: this is clearly a case for Chevron Ambiguity deference no need to add an extra step Brand X: What is the effect of private litigation on the ability of an agency to interpret a statute & ask for Chevron Deference?

Private litigation resolves the ambiguity no one to defer to Now how does the agency interpretation affect that? ARS 5/2/11

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Rascoffs 3 layer cake:

FDA/MCI: If issue at hand is of such political/economic moment that wed be hard pressed to imagine that Congress wanted agency to resolve issue through Chevron CHEVRON: Middle ground when Congress delegates authority to agency through ambiguity, agency gets deference at Step 2 its theory of what statute means gets deference unless tantamount to arbitrary and thus struck down as unreasonable MEAD: not that issue is of such significant consequence (FDA/MCI), but that issue is so small/inconsequential that an agency probably hasnt given it the right amount of serious thought that would entitle agency to get leg up on competition Agency can solve Mead problem by building in more process use process to close gap and clear force of law hurdle under Mead to get to Chevron deference

Brand X (continued from last class) [I: X v. Y]------------[II: Z v. Agency]-------------[III] At Time I, court had to resolve issue one way or the other because there was no agency to defer to. At Time II, in lawsuit that involves agency, can agencys view that is different from courts Time I resolution be given deference? Court uses Scalias dissent from Mead about ossification of the law. Thomas: To avoid ossification issue, its ok for agency to interpret statute differently than court did in X v. Y private lawsuit. o What do you do about precedent created in X v. Y? Thats life in the big city. Must look at opinion in X v. Y case and decide whether its tantamount to Step 1 or Step 2 decision whether there was ambiguity. Presence/absence of dissent not sufficient to make determination. Practical problem addressed by majority: Avoid race to courthouse. But issue: Doesnt this make all statutory interpretation cases Chevron cases? This cant be a Step 1 case bc if theres no ambiguity then theres nothing to redo

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