Legislation & Regulation Outline Fall 2013; Ellman 6n2i4s

LEGISLATION & REGULATION OUTLINE I.

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Statutory Interpretation a. Background: How to make a law: Art. 7 i. Member of congress proposes a bill ii. Initial age of bill needs a majority vote of Senate iii. House needs to vote and approve bill iv. President can either sign or veto 1. Committees: a. Bill introduced and referred to committee i. Decides whether to act or refer it elsewhere (shapes it, rewrite or amend) ii. Sent to house with a report b. Republican party controls committee in house of representatives c. Democrats control senate 2. After committee goes to full house of representatives a. Debated (rules committee) b. 60 votes invokes cloture i. makes leg. Process difficult c. Concerned with corruption of power b. Textualism: i. Ordinary meaning of plain language ii. No special definition/language the normal meaning of the word is given (dictionary) iii. Context of one word is other words around it TVA v. Hill iv. Any other reading the majority has leads to terrible or absurd consequences c. Intentionalism: (most traditional approach but fallen out of favor) i. When a judge confronts a difficult issue of stat interpretation, and statute is unclear, leads to a problematic result, judge should not live by the words of the text but instead reconstruct as best as possible with the likely intent of the legislature respecting the problem at hand 1. What would they have wanted? a. Legislative history: Look at talking in committees, producing reports, much of what was said in reports was not said in its text b. Totality of Congressional actions makes clear the intentions of statute c. The dog that didn’t bark argument congress’ silence suggests that this statutory language had this effect d. Purposivism: (Similar to intentionalism) i. Distinction is view of specific legislative intent: what would legislators have done if presented with the same question ii. Counterarguments: 1. Congress enacts things according to what they view as positive for the public wheel and well being a. Every piece of legislation has its specific purposes but all have a broad overarching purpose which is to legislate with some modicum of common sense and in light of the public wheel The Letter of the Law Versus the Spirit of the Law: Section A: The Classic Approach a. STRONG PURPOSIVISM v. WEAK PURPOSIVISM: (Riggs v. Palmer dead grandpa with text of will in direct favor of murderer)

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i. Strong purposivism: Use of statutory purpose to override the clear meaning of the words to fulfill overall purpose 1. How to determine purpose: a. FIRST: what was legislator’s intent i. Assurance in avoiding absurdities ii. Judges believe in fundamental maxims of system (anything that departs from this means that legislature would most likely have avoided) b. SECOND: exercise of judicial creativity Holy Trinity v. US i. Role of judges overriding text based on purpose (Blackstone) 1. Purpose is so clear it cries out 2. Advocates of that role has danger c. THIRD: look at the following: i. The title: helps remove ambiguity ii. The ―mischief rule‖: What did statute intend to solve 1. Contemporaneous events: (evil which it is designed to remedy) a. Situation as it existed and presented to legislature 2. Legislative history 3. Committee reports a. Societal values: i. Reason why allowing interpretation (Holy trinity: priest vs. unskilled labor workers) ii. Weak purposivism: When the text is not clear: need to find something to clarify it: i.e. purpose The New Textualism: Can discern true meaning of text by proper interpretive work and once you do that, must live with it WVUH v. a. TEST: Once you have figured out what the correct usage is, then you Casey know the text does not include specific i. Should you override meaning based on purpose? b. Congress resolves what it leaves alone: i. *what it wants to do and what it doesn’t want to do: evidence is statutory text (when that is unambiguous no variation) ii. Clear text is definitive (rejection of Holy trinity) Modern Versions of Purposivism a. SCALIA: Literalism approach i. When court’s use literalist interpretation of statutes, they go astray, then they get the statute wrong because it is not cabined in literal meaning of words ii. Intentions of statute are what it stands now, role is to say what the LAW is not to forecast what the law, as amended will be b. STEVENS: its proof of misreading and not giving effect of Congress’ intentions c. Dynamic statutory interpretation (argument): Sometimes Commonwealth disobeying statutory language is necessary because instruction to v. Welosky obey would yield unwanting results i. Changes in social conext new directives from principle may make it appropraite to resvise original directive even if new directives do not expressly withdraw or alter the original directive (Women voting rights & serving as jurors) 1. However specific original directive is: a. First understand assumptions underlying original directive (including purpose) b. Then figure out how the statute can best meet its goals

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i. Strong purposivism for the outliers d. Textually Constrained purposivism: only when the text is Dynamics ambiguous Land system v. i. Even a clear text can be overridden to promote justice to Cline trump immediate intentions of the drafter (opposition to new textualists) 1. Look at circumstances provided to congress 2. Social history 3. Mischief argument: congress might do more than eliminate mischief 4. Look at intro provisions ―whereas‖ clause offers purpose 5. Must make an argument that text is ambiguous a. Presumption of uniform usage relents when a word has several commonly used meanings (alternates) ii. Weak purposivism does not say that a clear text could be overridden by leg. Purpose Judicial Correction of Legislative Mistakes: Absurdity and Scrivener’s Errors US v. a. Absurdity doctrine: Statutes should not be construed to create absurd Kirby results (Kirby case: mail carrier obstruction for an arrest) i. Legislative supremacy: always be presumed that legislative intended for purpose of the statute to have exceptions 1. To avoid absurd results because leg did not intend absurdity a. Definitions: i. Something that contradicts common sense of man ii. Judicial obligation to enforce statutory text abates when absurdity would be so monstrous that it would reject all application ii. Test: where quite possible that congress could not have intended result, and where alleged absurdity is so clear as to be obvious to most anyone 1. Where textualism is very influential, safe bet that judges will lean to absurdity What Is the Text? (Scientific or Ordinary Meaning; Legal of Art; and Colloquial Meaning or Dictionary Meaning) a. FIRST: Look at text to decide if looking at purpose i. Trigger: is text ambiguous? Judges partial to issues of purpose more likely b. SECOND: Look at sources to find broad purpose: did congress mean to do more or less with broad purpose c. THIRD: Absurdity? i. Public Citizen case: inconceivable congress voted for it ii. If in doubt, lean against absurdity (purposivism flavor and not in purposivist time) Barnhart v. Sigmon Coal d. SCRIVENER’S ERROR: i. Typographical error a court will correct United States v. Locke 1. Dissent: Could have been legislative accident e. Absurdity doctrine v. Scrivener’s error: A.D. are errors in policy judgment f. Error in expression does not mean scrivener’s error did NOT occur i. Shared meanings & expectations of the relevant and linguistic community (words mean what community thinks they mean) 1. Complication: part of what we understand may be between lines g. Starting presumption that ordinary meaning of stat language expresses legislative purpose will be used: i. Dictionaries INFORM judges of reflective language ii. Technical audience (technical flavor, technical definitions = lawyer) vs. general public (common understanding applies) Nix v. Hedden

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iii. Where congress borrows of arts in which are accumulated in legal tradition, presumably knows and adopts ideas attached to borrowed word and the meaning its taken (agreed by majority) 1. Narrows statute and defeats broad purpose: SCALIA REJECTS: says text tells us what the purpose is. Moskal v. U.S. Legislative History I: The Post-New Deal Approach: What the words in the statute mean is what they mean in light of the shared understandings and expectations of the relevant linguistic community: Expert or Ordinary a. The Rule of Lenity: Reader must acknowledge that it is eminently undebatable Smith v. United States (I.e. “Use of a firearm”: Same words used in the same statute probably should be assumed subject to rebuttal, to mean the same thing) i. Don’t override truly clear text with anything else but ambiguous text you can override 1. Legislative history b. People who look to legislative history recognize general purposes of legislation, as to the details of its articulation as they accept the work of the committees so much they delegate because legislation could not go on any other way (Learned Hand) Train v. Colorado i. Need to flesh out details by delegating responsibilities to committees ii. Lesser of two evils: committee representative of legislative intent (outside pressure from special interest groups, exec agency or president) Legislative History II: The Textualist Critique a. Train v. Colorado: Test is what the statute says: Court agrees with Text i. Weight given to committee reports because of the colloquy discussion b. Reasonableness: What is reasonable? Blanchard v. Bergeron i. 12 Factors (Scalia disagrees: history being manufactured non-reliance v. manufactured by legislature) c. Textualists care about the TEXT: look at the words around it to determine what legislature meant. (EASTERBOOK) Final text is the law. Continental v. Chicago Truck Drivers Legislative History III: The Relevance of Legislative History After the Textualist Critique a. Opinions are NOT the law: STATUTES are the LAW. (Easterbook) i. Shouldn’t be looking at unenacted materials (committee reports, leg. Materials) b. ARGUMENT AGAINST: (Breyer): ―Statute Is the only law‖ misses point: i. Textualists looks at dictionaries (unenacated materials) 1. Rule of lenity (judge made law) 2. Caselaw used by courts ii. Looking at committee reports delegates responsibility to congress to dictate law (if also looking at dictionaries—nonpartisan) c. Easterbrook: leg history is not for intent but used as evidence of a meaning, a definition that’s actually in the text. i. Strict textualists say that leg history will tell us what words mean (evidence of definition) d. Legislative history used for definition: Objecting argument: smart congress person will manipulate definition for underlying purposes Corning Glass v. Brennan e. Legislative history may shed light but not authoritative Exxon Mobil Case The Judicial Power and Equitable Interpretation; and Canons of Construction I: Introduction a. JUDICIAL POWER: Today judges look at leg. History (skeptically) –unlike strict textualists i. Law is clear words of statute (Easterbrook) 1. ―Junior Partner‖ (Posner): Judges having authority going beyond statutes and fixing them. Treats statutes as judicial precedents rather than being a faithful agent to congress (job of judge always faithfully interprets what congress has done when it enacts a US v. statute) Marshall: a. Departure from legislative supremacy vs. ―fix the LSD blotter law‖ paper

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i. Art. III Sec. 1 Judicial power vested (no text stating what judicial power ultimately interpretation) b. CANONS OF CONSTRUCTION: i. McBoyle: (Is an airplane a motor vehicle?) 1. Canon interpretation: self propelled equates to what was listed a. Shouldn’t normally read the last clause (―any other thing‖) to change the subject of the first clause 2. Semantic canons: Guides offered to provide fair warning should be given to world in language that the common world will understand of what the law intends to do if a certain law is ed Canons of Construction II: The Semantic Canons, Especially Expressio Unius, Noscitur a Sociis, the Presumption Favoring Consistent Meaning, and the Presumption Against Surplus Language a. Semantic Canons: Not understood, not expressed as serving any particular constitutional policy purpose. Just supposed to be useful aids to reading complicated texts (latin names) formalized versions of what we would use to understand each other any time b. Six Semantic Canons: i. Expresio Unius: Literally the expression or inclusion of one thing is the exclusion of the other. The principle that when a statutory provision explicitly expresses or includes particular things, other things are implicitly excluded ii. Rule against surplusage: (―the presumption against superfluous statutory language) Judges should construe statutes so that every term and provision is meaningful, if it is possible to do so iii. Presumption of Consistent Usage: Identical words used in different parts of the same act are intended to have the same meaning Gustafson v. Alloyd Company 1. Objecting Argument: Dual Use: broadly and Term of art a. Want the whole word to carry meaning iv. In pari materia: ―on the same subject‖ when different statutes deal with the same matter, and use similar language, then the words should be interpreted similarly in both statutes v. Noscitur a sociis: ―a word is known by its associates‖ reading one word, typically a broad or a narrow word, to have a meaning that fits with the meaning of the words around it vi. Ejusdem generis: ―of the same kind‖ where a statute contains a list, ending (or beginning) with a catch-all term (such as ―any other X‖) interpret the catchall term to refer to items similar to those in the rest of the list. (VERY close to noscitur) Canons of Construction III: One More Semantic Canon (Ejusdem Generis), and the Substantive Canon of Constitutional Avoidance a. Canons do not plausibly lead you to true meaning of words and English language usage: (thumb on scales in favor of something –value, policy, etc.) i. Ejusdem Generis Canon: ―Of the same kind‖ 1. Meaning of general words ordinarily restricted by the particular designation so that the general phrase refers to things of same kind, class, character and nature People v. Smith a. “Stabbing Weapon”: which COMMON THEME are you supposed to pay attention to: Easily concealed b. Substantive Canon of Constitutional Avoidance: When there is a serious constitutional question (or grave) and there is another interpretation which could apply, invoke that interpretation so that there is no violation of constitution. (Court could be applying a somewhat looser version) i. Act of congress ought not to be construed to violate the constitution if any other plausible construction remains available 1. No Clear expression of affirmative intent: Clear expression is anything outlining or defining words to be as narrow as possible Catholic Bishop case

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ii. OBJECTING ARGUMENTS: Congress’ intent is clear: 1. Extracts clarity/ejects inclarity 2. Legislative history argument Canons of Construction IV: The Substantive Canon Constraining Federal Regulation of State Government Functions a. Avoidance Canon: When you’re considering a proposed interpretation of a statute, if that interpretation would raise a serious const. question. And if there is another interpretation available that would not raise that serious constitutional question, then you should pick that second interpretation i. One should be reluctant as a judge to overturn actions as unconstitutional unless you have to 1. If statute is unconstitutional, big problem created for congress, instead interpretation limits what congress has accomplished b. Objecting arguments of Const. Avoidance: i. Wholesale judicial dismemberment of congressional enactments 1. Don’t have to hold statute as unconstitutional can interpret away from what might be its correct reading not because its unconstitutional but because it raises a serious question a. Protects values of constitution c. Clear Statement Rule: A clear statement is required before a court can construe a federal statute interfering with a fundamental statute of state’s Gregory v. Ashcroft sovereignty i. Anyone reading act can tell that is what congress meant to do 1. Rationale: Insists on more clarity for interference of sovereignty a. No serious constitutional question, but serious const. concern 2. Judges are protecting the serious constitutional concern/value around federalism even though there is no mitigable constitutional issue in this case Delegation of Legislative Power I: The Nondelegation Doctrine and Its (Partial) Demise a. Federalism Clear Statement Canon: Congress needs to be explicit, and if not statute will lack clear statement 1. Even though there isn’t a serious const. question, court requires clear statement in order to read statute as having an effect on state statute ii. Does the Statute interfere with State Sovereignty? iii. Does the Statute clearly indicate that states are not included? (lacks a clear statement that the statute does not cover states when correctly interpreted 1. Separation of powers is apparent: vesting clauses of each article pertaining to each branch a. Evidence of blending: i. Veto power requires advice and consent of the senate. ii. Agencies only assist congress with the powers they have iii. Const. does not have ―no delegations‖ restrictions iv. Necessary and proper clause: allows congress to fulfill their right/powers necessary for carrying into execution of the foregoing powers v. 2. APA delegates authority to develop specific rules 3. Agencies create rules and regulations a. Anything gov’t working in 4. Congress creates statute Delegation of Legislative Power II: Nondelegation as a Substantive Canon of Interpretation

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a. A substantive canon justifies choosing a reading which may be less than the best reading or most natural reading because it avoids the constitutional problem b. NonDelegation Canon: One branch, one power. Congress cannot transfer legislative powers to president. If this is so, must seek the words of the constitution for the authority for that clear rule. i. If congress has laid down an intelligible principle it has made the core lawmaking decisions (fundamental idea) all the rest is detailed filled in to implement congress’ policy judgment J.W. Hampton ii. Non-Delegation is toothless (Scalia) iii. Has had one good year, and 211 bad ones Whitman case iv. Power that has been delegated is a form of policy making decision is a form of executive v. Legislative power is vested in congress: agencies make rules, and these activities take legislative forms, but are exercised under constitution. Structure must be of executive power City of Arlington Congressional Control of Agencies: The Legislative Veto and Other Tools a. Quasi Legislative authority can be delegated i. Can only delegate provided it comes with an intelligible principle b. Constitutional avoidance canon: considering an interpretation of a statute which presents either a constitutionally questionable or one that avoids an issue of constitutionality; avoid the latter and go with the safer interpretation c. Non-delegation: comes into play even when there is no violation of a constitutional principle, as long as there is a concern of a constitutional principle d. Legislative veto: statute providing for a legislative veto exercising power, ing resolution Chadha i. Legislative power can be exercised is through bicameralism and presentment 1. Quasi Legislative: Explains why its different when an agency makes rules vs. congress. Difference: intelligible principle which constrains the agency’s discretion e. Necessary and property clause: strong argument for congressional ability i. *don’t just only look at text to see if there’s a provision for how to point, but check text to see if there’s a provision for discretion Appointment and Removal of Executive Branch Officers: Foundations a. Myers:: Multi member commission: can only be removed for inefficiency (neglected duty) or malfeasance in office b. If pres doesn’t have one of those, no statutory authority to do so i. Quasi Legislative/Judicial: Agency is acting this way but NOT in an executive fashion 1. If youre a commissioner of an agency with QL & QJ functions and not executive in constitutional sense, congress has the right to restrict presidential power to fire you 2. Pres authority to fire people engaged in carrying law of US can be restricted by congress if it chooses Appointment and Removal of Executive Branch Officers: The Modern Approach a. Non-Delegation Canon: Has no teeth at all, congress can delegate quasi legislative b. Legislative veto: Serviceable way that congress could produce risks of arbitrary or nondemocratic decisions. Need to check legislative veto c. Appointments and Removals: Whoever has power, has some authority over people appointed. Some sort of control over officials in istrative agencies i. Default rule: unless congress says otherwise, Pres nomination, advice and consent and withholding from senate ii. Congress cannot remove any officer other than by impeachment d. Humphrey’s Executor: Congress can limit president’s removal power i. “For Cause Removal”: marks creation of whats often called a quasi independent agency

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e. Morrison Test: Inferior vs. Superior 4 factor test: i. Subject to removal by higher executive branch official: can be removed on the basis from the attorney general and only for good cause physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties 1. Counter Argument: *Scalia doesn’t know how that’s possible ii. Certain Limited duties: no duty to formulate policy or no istrative duties 1. Counter: *Scalia: not much of limitations iii. Limited in jurisdiction: scope of jur. Is narrow and limited to function 1. Counter: *Scalia: might be small, but still within it exercises more than the full power of the attorney general iv. Limited in Tenure: Only accomplishes a single task 1. Counter: *Scalia: not limited by a time limit but by a function, which can go on for a long time f. Edmonds: Inferior officer test: i. 3 of the 4 factors don’t work: Only real test is *subordinate: 1. Inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with advice and consent of senate Overview of the istrative Process: Adjudication and Regulation, Formal and Informal a. istrative Procedure Act: Constitution for agencies: necessary and proper clause gives congress power to do more regulation istrative state i. Formal: Regulate procedures of formal adjudication and rulemaking: creates roughly like a regular trial 1. Hearings, presiding employees, powers and duties a. Companies may want formal because you have chance to lobby against agencies, delays in hearing b. More time to prepare ii. Informal: Doesn’t say much, rule making and then there’s everything else 1. Notice 2. Public has the opportunity to comment 3. Once over, needs to publish an explanation of what’s been adopted a. Agencies want informal because: i. Time constraints, less effort, less oversight iii. Any party requesting a hearing, needs to set forth evidence adduced iv. Ludlum: Actual words ―on record‖ and ―after hearing‖ were not words of art and that other statutory language with same meaning could trigger requirement of formal rulemaking Notice-and-Comment Rulemaking: The “Paper Hearing” Requirement a. When N&C are required: shall give interested person the opportunity to participate with submission of written data. b. Notice of Hearings: subsection applies i. 553: Notice and comments – no right to oral hearing ii. ―Hearing‖: any opportunity to have your view considered iii. ―adjudication‖ requires some sort of hearing iv. ―rulemaking‖ does not require hearing 1. Rulemaking: when people are equally effected, puts a financial burden on certain people. Same rule applies to diff people have diff effects v. If it’s a general rule: due process requirements are no more than what APA states: notice/comment rulemaking 1. Notice and Comment:

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a. Purpose and major policy issues should be raised by agency (burden is on the agency to respond and articulate rationally to avoid overturn) Notice-and-Comment Rulemaking: When Is a Supplemental Notice Required? a. Notice: Needs to include a list of studies relied on, if they include the full proposed text of the proposed rule (). i. Need to include the of the rule! ii. Satisfy Arbitrary and Capricious: Need to have a rational response meaningful in comments b. Where there’s logical comments, should change rule c. TEST: Logical Outgrowth Test: Idea that logical outgrowth is in character with original scheme i. If agency makes changes as a result of comments and changes are the logical outgrowth of the original proposal then they don’t need another round of notice and comment 1. Is the new rule logical outgrowth? a. Must be logical b. Looking at particular circumstances with view to figure out was there enough notice to give the parties opportunity to comment Nov. 18: Judicial Regulation of the Substance of Agency Action: Modern “Hard Look” Judicial Review a. APA has the provision authorizing courts to overturn arbitrary & capricious agency action State Farm i. FIRST: Standard way to interpret those words: figure out whether arbitrary is a term of art 1. SECOND: If so, then figure an appropriate way of interpreting statute b. Term of art: arbitrary & capricious is hard to achieve (page 726) i. Could say courts have authority to say in a particular case that even though APA doesn’t require procedural rule, more careful rule is needed to add to procedures APA requires (courts are experts on what process is really required) Supreme Court addressed that idea c. Crucial part to judge agency’s action based on what it says i. Policy rationale: Times are changing d. Rational based on relevant factors and within scope of authority delegated to agency by statute e. Must consider whether decision was based on a consideration of relevant factors and whether there has been a clear error of judgment f. Three part test: State Farm Case i. (1) the agency has relied on factors which congress has not intended it to consider; ii. (2) entirely failed to consider an important aspect of the problem iii. (3) offered an explanation to its decision that runs counter to agency, or so implausible 1. agency HAS to say it 2. in order to determine whether factors 1, 2, 3 are present or absent must look at what agency says itself, uphold a decision less than clear if agency’s path can be reasonably discerned a. STATE FARM REASONING: Arbitrary and Capricious: i. Common sense of data is so clear, that because agency’s failure to articulate their rational is fatal ii. Clear error NOT in ultimate choice but clear error in not justifying choice g. Counter Argument to Statefarm: (Rehnquist) i. Logic here is if congress says list of factors in order, if agency shuffles order contrary to what congress says, this could be A&C ii. Congress says don’t think about ―X‖ iii. Pretty demanding standard of review. h. Review of arbitrary and capricious:

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i. Justice White’s Three factor Test from State farm: 1. An agency rule would be arbitrary and capricious if: a. The agency has relied on factors which congress has not intended it to consider b. Entirely failed to consider an important aspect of the problem c. Offered an explanation for its decision that runs counter to the evidence Chevron I: Judicial Review of Agency Statutory Interpretations – The Modern Approach a. Chevron changed the way that the circumstances of that deference was given i. Idea that courts would defer to agency interpretations of law (not really new) b. Chevron test: i. STEP ONE: Whether congress has directly spoken to the precise question at issue 1. If clear, end of the matter (must give effect to unambiguous expressed intent) a. Must use statutory tools of interpretation b. Intention is the law and must be given effect i. At step 1 you have to do all of the things that current rules of statutory interpretation 2. Chevron only applies to istrative procedure act 3. Negative: istrative procedure act, not istered to everyone ii. STEP TWO: 1. If not, court does not impose its own direction, question for court is whether the agency’s answer is based on a permissible/reasonable construction of a statute a. Suppose court says this is not the best interpretation, then permissible/reasonable i. Court need not conclude that the agency construction was only one it permissibly could have adopted to uphold the construction or even the reading the court would have reached if the question initially had arisen in a judicial proceeding 1. interpretations ii. Accept agency’s reasonable permissible reading even though you don’t think it is right, so long as it is reasonable and permissible then it is acceptable 1. Statute being ambiguous opens up some range, doesn’t mean its open season 2. Should a court reasonably accept agency’s definition? c. Start with an explicit definition: i. When congress has specifically said agency to fill in the gap: 1. Given controlling weight unless they are arbitrary capricious or manifestly contrary (but this is part of step one). ii. Example one vs. Example two: 1. One: explicit 2. Two: implicit d. Sometimes delegation is implicit vs. explicit i. Next step is reasonableness: 1. Potential problem: what court says is standard for determining if agency has interpreted properly when there is an explicit delegation is: arbitrary and capricious 2. Standard for implicit delegation is: reasonable a. Two diff standards of review b. When an agency interprets a law implicit/explicit: i. Reasonable/permissible 1. The expression in this context of the arbitrary and capricious standard of review

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Chevron II: Chevron, Textual Analysis, and Structural Inference in MCI Telecommunications Corp. v. AT&T a. agency expertise: deep in details i. Democracy argument: agencies are more democratic, entitled to choose policy 1. Promotes consistency of federal law: make agency have its own interpretation b. STEP TWO of CHEVRON: why does court conclude step 2 has been ed? MCI case i. How is it reasonable? 1. Reasoned and detailed articulation of the basis of the agency’s judgment a. Decision involves reconciling conflicting policies i. Why give deference to an agency: they are able: agencies (compared to courts) are democratically able 1. Conflicting policies a. Who resolves? Want politically able i. This is an instance where agency is acted reasonably and permissible b. Agency also considered the matter in a detailed fashion ii. Court’s reasoning for saying agency acted reasonably and permissibly: 1. Problem called for expertise and democratic ability and agency confronted in a detailed and reasoned fashion iii. Conflicting policies: How do we know? Court says it a. arbitrary and capricious review c. Chevron Step 2 Review: Regulatory scheme technical complex i. Agency considered in detailed reasonable fashion 1. Reconciled policy objectives a. Deferential flavor i. Court embracing deference to agencies? (maybe) at least when initially handing down Chevron did result in deference to agencies ii. Only get to step 2 if you get by step 1 MCI CASE!! (Statute’s meaning is clear) doesn’t matter how deferential step 2 is, clear meaning in step 1 control b. Important to see how judges proceed in Step 1: i. MCI Case: Scalia (textualist) vs. ii. Stevens (purposivist) 1. Step one: General proposition for textualists mean their ordinary meaning when they were adopted b. Canon: Expresio Unios: stating one exception to agency’s power to modify, whatever left out was meant to leave out, so all other possible modifications are ―OK‖ because not ruled out b. All adds up to textualist basis to Scalia’s understanding d. Counter Argument to TEXTUALIST CHEVRON ANALYSIS: STEVENS: i. Argument: From purpose: derived from legislative history 1. If purpose of statute is to allow agency to flexibly respond to changing conditions in industry, use that purpose of ambiguous text from leg history, and use that to understand particular words 2. Scalia would NOT have anything to do with legislative history ii. Legit tools of statutory interpretation: need to run tools of statutory interpretation to determine meaning 1. Stevens (purposivist argument): iii. Sec. (2) Expresio unius argument: Authority to stiffen vs. Authority to relax. It was no stretch for FCC to draw from single unidirectional statutory authority; taking away rate filing requirement is no burden, the only limit is on burdening

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Chevron III: Chevron, Semantic Canons, and of Art in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon a. Chevron looks at 3 elements worth considering: i. Need for agency expertise ii. Agency considered matter in detailed and reasoned fashion iii. Decision involves reconciling conflicting policies: 1. Agencies are more politically able than courts are b. Chevron factors overlap with the state farm (3) test elements: i. Chevron is arbitrary and capricious review for particular circumstance of whether agency interpretations are valid or not ii. State farm test and 3 elements overlap extensively with chevron elements in particular state farm says that the: 1. Agency failed to consider relevant factors 2. Did consider contradictory factor 3. Consideration was so implausible it conflicted a. Conflicts with chevron: agency considered matter in detailed and reasoned fashion c. Chevron step 2 satisfaction: i. Look at chevron step 2’s consideration 1. Perfectly legitimate to look at State farm for supplementary guidance whether Chevron Step 2 has been satisfied d. MCI CASE IS STEP ONE DECISION: Scalia stops at ordinary meaning i. Scalia for majority says statute in question has a clear meaning: contrary to agencies interpretation 1. Step 1 says if congress has spoken clearly, that’s the end of the matter: what it has said controls e. Chevron step 1: court looks at statute but not just words but using traditional tools of statutory interpretation i. Debate about exactly which tools should be used and to what extent (Not necessary to pursue) 1. Take chevron at its word: step 1 use full list of tools of statutory interpretation 2. Inference of broad judicial philosophies but also tool work using statutory interpretation a. Stevens says consider broad purpose and pick meaning of broad purpose of statute Chevron IV: The Limits of Chevron’s Domain a. MCI: i. Scalia: Step 1 case: decides statute clearly precludes meaning agency has given it regarding ―modify‖ ii. Stevens: Statute survives step 1, and gets to Step 2: 1. Stevens’ opinion, Dissent: Second example is how to do a step 2 analysis 2. Commission’s reading cannot be termed unreasonable a. Page 786: commissions’ reading is informed by a practical understanding of role…. Commission has looked at the role b. Informed as ours is not: Agencies have expertise and we should conform to their expression 3. Stephens quotes agency in chevron: regulatory scheme is technical and complex a. Expertise reference b. Decision reconciles conflicting policies c. Tension between rate filing system : statutory policy d. And goal of fair policy i. Not same kind of reconciliation with chevron

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ii. Doesn’t have to be similar policy types of conflict iii. Agency’s consistency is another way of showing reasoned and detailed thinking 1. ―regulatory scheme is technical and complex‖ b. At step 1 courts job is to look at statute in of all tools of statutory interpretation i. With one exception: 1. No strong purposivist or strong intentionalist argument a. Strong purpose/intention will overturn the meaning of clear text b. Weak purposivism is okay: can be construed in light of its purpose i. Chevron says to use traditional tools, but not traditional tools that are rejected c. Re: Babbit: i. Stevens’ broad purpose argument: broad purpose of ESA s Secy’s decision to extend protection against activities that cause the precise harms congress enacted the statute to avoid: ii. Scalia: re: broad purpose: I thought we renounced the vice of simplistically assuming primary objective of statute from the law 1. Deduction of broad purpose of law is used to decide by what means 2. Deeply skeptical of pushing text off true meaning on basis of notions or broad purpose d. Legislative history i. ―permit provision‖ if you can permit it, you can otherwise prohibit it, therefore meaning of harm to permit habitat degradation e. Court removed the language because it made further than it wanted to go 1. Legislative history is worth looking at with care a. Scalia re: leg history: both senate and house explained bill to leave that the problem of habitat destruction, this part of statute solved a WHOLE diff problem of ―taking‖ b. No response to that part of legislative history f. Counterargument: you could very well deal with similar definitions of harm throughout the statute DECEMBER 18, 2013: REVIEW a. For any TEST: i. FIRST: state the test 1. Say something about each element in order 2. Multiple tools of statutory tools of interpretation b. Congress tells an agency to make rules : Do X c. Not intelligible principle i. Intelligible principle: what congress tells the agency it is to use as its guideline in performing task 1. Intelligible principle: ―with view to promote automobile safety‖ d. Chevron vs. Statefarm re: greater intrusiveness with State Farm i. State Farm: has agency in use of law which is clear properly applied to facts ii. Chevron illustrates a step 2 analysis: START HERE 1. If looks like things are two fine under Chev step 2, chances are its okay, but wouldn’t stop there. Reasonable to do State farm factors add anything to chevron step 2 analysis? a. State farm can come back into relevance within chevron step 2 b. Not likely to shift ultimate answer (no need to confront true conflict between Chevron and State farm) c. State Farm review of settled law based on facts?

i. Automobile safety act at issue, was re: safety 1. Did apply facts re: seatbelts and airbags in arbitrary and capricious way 2. Chevron: Issue is what does the statute mean a. A/C of whether agencies interpretation of the meaning of the law is correct or not e. Appointment and Removal: Morrison and Edmund Tests: i. Not about everything re; appt and removal: which is Who is an inferior vs. principal officer to the united states: relevant because const. specifies one procedure for appt of inferior, but only ii. Is officer is a principal or inferior officer? 1. Morrison Test: 4 factor test: a. Subject to removal by higher executive branch official: can be removed on the basis from the attorney general and only for good cause physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties b. Limited in jurisdiction c. Limited in Tenure d. Limited in duties iii. Edmunds arguably single factor: whether officer is supervisor or not: Not contradictory test, was clear that supervision had obtained importance re: analysis to inferior or not 1. Officer is under supervision by higher officer: not just any higher officer, but its by someone lower than president, who can be a principal, being supervised = someone in between pres and you, important factor to determine inferiority f. Modern textualism: i. New textualist answer to reading statutes: ordinary meaning of the words that they use 1. As they were used when they were enacted a. 1934 statute: dictionary in 1934 that something means ―x‖ new textaulist will say that’s what it means b. Textualist interpretations of statutes says yes we want to know what statute originally meant, but way we figured out is determining what its words meant g. Kent v. Dulles: pg 400 i. Featured broad delegation, (stat easily read of broad) ii. Secretary grant ports, no stated limit of what rules can say 1. Pres can say you get a port/don’t get a port on any ground whatsoever a. Nondelegation element to Kent v. Dulles: SC proves not as broad a delegation that the statute reads it out to be iii. Stronger theme here: broad delegation that jeopardizes serious const. question of 5th amendment 1. Both themes can be discerned here though iv. Court says: no Pres you cannot deny port on ground that person is communist even though the statutes doesn’t have words stating that 1. If one interpretation raises a serious constitutional problem, and another interpretation that seems fairly possible, and doesn’t raise it, then supposed to choose that other interpretation a. Allow pres to deny const. ports raises serious constitutional problem i. Canon says choose another interpretation: find one. 1. Catholic bishop: says anything possible 2. In certain cases when constitutional stakes get high enough, court will find room from another interpretation if it has not been specifically rejected

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3. Catholic bishop: doesn’t specifically say statute doesn’t apply to religious schools, possible that it doesn’t, even though standard reading does imply that it does apply to religious schools. Benzene case: interpretation of meaning of statute: had Chevron existed, it would have been applicable i. Term of Art 1. Substantive: a. Constitutional Avoidance Canon: If the interpretation poses a serious or grave constitutional concern, and there is another interpretation that is reasonable, choose that interpretation. b. Federalism Clear Statement Canon: If there is a Federal/State division of power, Congress must make it clear that this is what they intend to do c. Nondelegation Canon (worth keeping in mind, but status of a canon is less clear cut): Toothless doctrine, says that one branch of government exercises authority of another branch. 2. Occasional signs of judicial practice narrowing congressional delegation, saying too much 3. Hasn’t risen though to a clearer status as the other two Semantic canons: Term of Art i. Presumption of consistent meaning: The same word used in multiple places in the statute means the same thing at the same time ii. In pari materia: similar but not subpart of above, because it is about the same word used in multiple statutes and says the same word used in multiple statutes dealing with the same matter Scriveners error: Tool of interpretation i. Way of addressing problem in statute 1. What you find when its obvious that the legislature has made a failure of expression: 2. Grammatical, cross-reference to a statute that does not exist a. Grammatical sentences that are so preposterous that were not written correctly i. I.e. Arkansas statute that if read, abolished all laws. Humphrey’s Executor & Morrison: i. Myers: dealt with removal of postmaster 1. Senate asserted by statute to have power to remove. Myer’s said unconstitutional, pres should have sole and unfettered power to remove postmaster 2. Executive power is vested in just president and president has responsibility to take care that the laws be executed faithfully. a. Have to be able to fire anyone under you in that business, otherwise wont have job Humphreys: Myers was true only for officers who were purely executive i. FTC commissioner: that officials job was not really executive very much at all. Only executive in an ancillary sense, commissioner’s task quasi legislative quasi judicial 1. With respect to officials who are not directly executive, but something else : QuasiLegislative or Quasi Judicial: presidents power can be restrictive to remove those officials for cause. No one said presidents power has to be restrictive, CONGRESS’ choice re: these quasi, if they want to restrict power. Part of creating quasi independent agency to make it difficult for pres to fire these ppl a. PROBLEM: Legal: Nobody believes anymore, but heads of FTC are only doing quasi leg and quasi jud. Stuff. People running istrative agencies are doing something fundamentally executive: enforcing law,

through quasi leg and quasi jud but STILL executive. Humphrey’s executor doesn’t work here. b. Nobody believes anymore heads of FTC are only doing quasi leg or judicial, they are fundamentally executive instead. Enforcing the law by doing things quasi leg/jud, but still executive in an enforcing sense i. Pres isn’t able to fire because not executive because they don’t work 2. Presidents power can be restricted to power to remove those officials for cause. Nobody ever said pres power HAD to be restricted, its congress’ choice, whether they want to restrict pres removal power a. Congress has wanted, through quasi independent agency making it hard for pres to fire ppl within agency m. Morrison: question of leg or exec or something else is no longer determinative i. Will limiting presidents power to remove will impair president to remove you to for cause removal impair his ability to carry out his constitutional functioning duties 1. If not, whether purely/partly executive, you can be protected from cause removal 2. If you are, cannot be protected by pres for cause removal a. Are you a principal officer or not will impair pres removal but doesn’t DETERMINE it either way