Administrative and Regulatory State (ars) Outline – Rascoff, Spring 2009 – Jason Hardy

D. The Administrative Procedure Act (APA)


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D. The Administrative Procedure Act (APA)

  • An agency’s organic statute stipulates whether the agency must engage in rule-making, adjudication, or either. Once the procedure is determined, the APA defines how the process must work.

  • Policy justifications for passage of the APA

    • Ensure agency accountability (through transparency and deliberative process) and reliability.

    • Functions as a solution to due process concerns in some cases, although not always.

  • APA §551 (enacted post-New Deal in 1946)

    • “rule” =

      • “the whole or part of an agency statement

      • “of general or particular applicability and future effect

      • “designed to implement, interpret, or prescribe law or policy

      • “or describing the organization, procedure, or practice requirements of an agency and

      • “includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.”

    • “rule making” = “agency process for formulating, amending, or repealing a rule.” [quasi-legislative]

    • “order” =

      • “the whole or part of a final disposition,

      • “whether affirmative, negative, injunctive, or declaratory in form,

      • “of an agency in a matter other than rule making but including licensing.”

    • “adjudication” = “agency process for the formulation of an order.” [quasi-judicial]
      • Includes the resolution of litigation, the revocation of a license, decisions to spend or not on a particular project, decisions to grant a lease to private parties to cut timber on public lands, decisions to enter into or rescind a contract with suppliers, etc.

  • Rule-making vs. Adjudication

Advantage of Rule-making

Advantage of Adjudication

- Broad, generally-applied policy decisions

- Allows more flexibility; e.g. don’t have to wait for a case to be presented

- Can apply more consistently

- Allows for interested parties to participate in the quasi-legislative process

- Initially was less formal than formal adjudication

- Not as broadly binding, since case-by-case

- Does not invite the same level of scrutiny as a broad based rule (thus avoiding controversy for hot-button issues, such as labor disputes and the decisions made by the NLRB).

  • Formal vs. Informal





(a) Formal rulemaking (hardly used), governed by APA §§553(c), & 556-57. “on the record”

(b) Notice-and-comment rulemaking, governed by APA §553. (allows Agencies more flexibility)


(c) Formal adjudication, governed by §§554, &556-57 (essentially mimics a trial) “on the record” after opportunity for a “hearing” (or when decision invokes due process concerns)

(d) Informal adjudication – not “on the record,” not a rule (not governed by APA), but see Overton Park.

  • (a) Requirements for formal rulemaking

    • Rarely implicated b/c “on the record” and “after ... hearing” or similar phrases are essentially required to indicate Congress’ intent that the agency engage in formal rulemaking. Fla. E. Coast Ry., US (1973), CP:

      • Facts: ICC fixed a rate for one RR to use another’s cars in order to stimulate RR’s to purchase more cars and reduce a shortage. ICC began a formal rule-making procedure but changed to a less formal rule-making procedure after a Senate oversight hearing which criticized ICC’s slowness to issue a rate. Thus, parties were not allowed to present comments orally in a hearing. Two RRs sued under the theory that the organic statute of the ICC, ICA §1(14)(a), required a formal hearing in accordance with APA §556.

      • Holding: The ICC’s proceeding was only governed by §553.

      • Reasoning:

        • Whole Code and Exclusio unius canons: Because Congress used “on the record” and “after ...hearing” in other statutes, it could have used it in the ICA if it had intended to require the ICC to regulate by formal rulemaking.

        • Because it effects a broad policy, this situation is closer to the facts of Bi-Metallic than to Londoner, , and Ps received the “hearing” required by §1(14)(a) (the process that was due) when they were allowed to submit written comments to a proposed rule.
      • Dissent: Since Ps were especially harmed by the rule, the due process concerns of Londoner are at issue, requiring the more formal safeguards of APA §556(d).

  • (b) Requirements for Notice-and-Comment Rulemaking

    • General notice of proposed rulemaking in the Federal Register, specifying the time and place of the rulemaking proceedings, the legal authority relied on for their issuance, and the content or subject matter of the proposed rules,

    • Opportunity for “interested persons” to comment on the proposed rules by written submissions and, at the option of the agency, opportunity for oral argument,

    • Issuance, when rules are finally promulgated, of a “concise general statement of their basis and purpose,”

    • Provision, in the case of “substantive” rules, that they shall not be effective in less than 30 days after promulgation.

  • (c) Requirements for formal adjudication (judicial due process), per [Friendly, CP326]

    • Impartial decision-maker (APA §§556(b), 557(d))

    • Notice of proposed action and grounds asserted for it (§554(b))

    • Opportunity for parties to present reasons why the proposed action should not be taken (§556(d))

    • Right for parties to present evidence, such as calling witnesses and opposing information.

    • Order based exclusively on evidence presented (§556(e))

    • Tribunal prepare a record of evidence presented

    • Written statement of fact (§557(3))

  • (d) Requirements for informal adjudication

    • No requirements per the APA, so courts read in what process is required.
    • Per Overton Park, Courts have stated that judicial review should be based upon an “arbitrary and capricious” standard using the administrative “record” – the relevant documents in the agency’s file; if the record is not sufficient, courts either conduct discovery of agency decision makers or remand to the agency to develop more of a record.

IV. The Role of Reviewing Courts

Arguments in favor of judicial review

Counter-arguments (in favor of deference)

(1) Public choice: Judges are independent from the regulated industries and thus, due to their impartiality, avoid “capture” by special interests. Judges can also be more apolitical. (re: State Farm, p1181 for a discussion of capture or p1126 for capture of Congress and the n&c process in regard to the NHTSA.)

(1) Agencies are held accountable by voters who select the President and Congress. Also, the purpose of n&c is to elicit input from affected parties. Furthermore, political policy decisions are appropriate by agencies (See [Rehnquist] in State Farm). Judicial review of decisions by the political branches, then, undermines our democratic system in theory. In fact, though, studies show that judges vote along political lines.

(2) Judges are experts in the analysis of laws, statutes, the Constitution, etc.

(2) Agencies have expertise in their fields that judges do not have and are able to make better policy decisions.

(3) Judicial review provides an additional level of oversight to correct for errors, agency bias, or agency “tunnel vision.”

(3) Court review will probably miss relevant issues; e.g. racial or circumstantial background issues. Strauss’ perspective on Overton Park (1170) provides an example of judicial “tunnel vision.” Also, the additional levels of oversight lead to “ossification,” bogging down a system that was designed to be flexible and able to respond to policy challenges quickly (ex. of ossification in n&c: NHTSA’s rulemaking and auto industry, p1126).

(4) Decisions by an agency provide consistent expectations for affected parties b/c agencies’ “policy biases will ordinarily be known.” [Scalia, CP 431’4].

A. Judicial Review of Agency Policy

  • (1) Did agency act within the scope of its authority (as defined in its organic statute)?

  • (2) Was the agency’s decision, even if informal and discretionary, arbitrary and capricious? [ex: Overton Park, which involved informal adjudication]

    • Did agency review all relevant information?

    • Has agency articulated an explanation which includes a rational connection between

      • the facts found and

      • The choice made?

    • Has the agency justified departures from past practice and considered all reasonable alternatives?

    • Per State Farm:

      • Has the agency relied only on factors that Congress intended it to consider,

      • considered all important aspects of the problem, and

      • offered an explanation for its decision that

        • accords with the evidence before the agency

        • and is plausible, where an implausible explanation is one that “could not be ascribed to a difference in view or the product of agency expertise”?

    • If not,

      • remand back to the agency to consider all info and provide a rational explanation,

      • unless there is a “clear error of judgment” (e.g. there was a clear path for the highway around the park, but the agency ignored it)
        • --> the court should invalidate the decision.

  • (3) Did the agency follow the procedures it was supposed to?

  • Cases:

    • Overton Park [Citizens to Preserve Overton Park, Inc. v. Volpe, US (1971), CP 372]:

      • Facts: The DOT’s organic statute and §18(a) of the Federal-Aid-to-Highways Act of 1968 “prohibited the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a ‘feasible and prudent’ alternative route exists.” “If no such route is available, the statutes allow him to approve construction through parks only if there has been ‘all possible planning to minimize harm’ to the park.” DOT approved a plan for a highway to go through a park near Memphis. A group of private citizens sued the DOT to enjoin construction of plan and argued that the Secretary had not adhered to the statutory requirements. J for D. R’d and remanded to develop more of a record, since the current record was not sufficient to determine if the Secretary’s decision was arbitrary and capricious

      • Holding: The record before the lower court only included “’post hoc’ rationalizations” and not the “whole record” (full administrative record) required for review under APA §706.

    • State Farm [Motor Vehicle Mfgs Ass’n. v. State Farm Mutual Automobile Ins. Co., US (1983), 1176]:
      • Facts: The NHTSA rescinded Standard 208, which had required passive restraint systems (either airbags or automatic seatbelts) on vehicles made after 1982. Insurance companies sued. The Agency argued that the industry overwhelmingly planned to install automatic seatbelts, which would comply with the standard, but such belts could be disabled. As a result, the agency could not reliably predict that the std would lead to significant safety benefits, making the requirement unreasonable and impractical. Furthermore, they argued, an ineffective regulatory scheme would be detrimental to public support for future safety regulations.

      • Holding [White]: The NHTSA acted arbitrarily and capriciously in rescinding the passive restraint requirement of Standard 208 b/c the Agency “failed to present an adequate basis and explanation for” the decision. The Agency “must either consider the matter further or adhere to or amend Standard 208 along lines which its analysis supports.”

      • Reasoning:

        • Courts do not review agency decisions not to prosecute or enforce standards, as in Heckler v. Cheney (1170), or failure to promulgate standards because such decisions involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Id. However, rescinding a rule constitutes “rule making,” as defined in APA § 551(5).

        • Re: airbags – the agency should have considered amending the rule in order to accomplish its goal of reducing deaths rather than rescinding the rule altogether. It should have considered whether that rule was flawed because it gave agencies a choice rather than just mandating airbags.

        • Re: seatbelts – the act of rescinding the automatic seatbelts rule was not supported by studies; the agency hadn’t done its homework properly and the cost-benefit analysis wasn’t done correctly.

      • Dissent [Rehnquist]:

        • Re: seatbelts – First, on balance, the science may not be terrific but it may be good enough for government work. The VW study cited by the majority has its own problems.

        • Change in administration: A change in power (brought about by popular vote) is a rational basis for a changed view of costs and benefits.

B. Judicial Review of Agency Fact-Finding
  • APA §706(2): A reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be –

    • “(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute;” [i.e. formal adj’n or rm] or

    • “(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

    • “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”

  • Standard of review: Could a rational (or reasonable) fact-finder have made the same conclusion (is there substantial evidence to support the conclusion)?

  • Totality of circumstances: In reviewing a decision under the substantiality of evidence standard, the record must be reviewed as a whole, including the findings of a trier of fact. (ALJ’s findings neither receive finality nor total disregard: “On reconsideration of the record [the Court of Appeals] should accord the findings of the trial examiner [ALJ] the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board’s order is substantial.”) Universal Camera Corp. v. NLRB, US (1951), CP 403:

    • Disposition: Vacated and remanded 2d Cir’s decision (see Background below).

    • Reasoning [Frankfurter]:

      • The amendments to the APA sought to reaffirm the “substantial evidence” standard of review but to disapprove “of the manner in which the courts were applying their own standard.”
      • A reviewing court must consider whether the Board’s decision was supported by substantial evidence viewed in light of the whole record, “including the body of evidence opposed to the Board’s view.” The ALJ’s report of findings “is as much a part of the record as the complaint or the testimony.”

    • Background:

      • NLRB v. Universal Camera Corp., [I], 2d Cir., (1950), CP 399:

        • Facts: Mr. Chairman was fired by Universal Camera. C sued in ALJ of NLRB. P argued he was fired improperly b/c of testimony at a labor hearing. D presented evidence that P called his boss (Weintraub) a “drunk” and undermined the boss’ management ability. But they did not fire him immediately after calling Weintraub a drunk; they waited a month. D claims the delay was because they thought P was going to resign soon. Examiner/ALJ found in favor of D (employer), but the Board reversed the decision and found in favor of P b/c they found the reason for the delay to be implausible.

        • Issue: Did the Board properly use the ALJ’s findings?

          • Paradox:

            • Complete deference to ALJ: If the Board may only disregard the ALJ’s findings if “clearly erroneous,” this elevates the status of ALJs to “masters,” which seems to contradict the language of the APA.

            • Rejection of ALJ’s findings: “[A]lthough the Board should no doubt treat [the ALJ’s findings] as having some evidentiary value, it [is] impossible for [the court] to measure what that ought to be...” Universal Camera “II” (describing the dilemma of “I”). If a reviewing court must consider such the Board’s reversal of the ALJ’s finding in the court’s own decision, the court will just be rubber-stamping the Board’s decision unless it does not consider the Board’s reversal at all.

        • Holding [Hand]: Thus, the reviewing court is not required to consider the Board’s reversal of the ALJ’s findings and should decide the appeal “as though there had been no findings.” II. Nevertheless, the court upheld the Board’s decision (b/c it appeared to be based upon substantial evidence?)

    • On remand:
      • “[A]n examiner’s [(ALJ’s)] findings on veracity must not be overruled without a very substantial preponderance in the testimony as recorded” – e.g., per [Frank]’s dissent, the Board rationally relies upon its specialized knowledge or “the examiner has been absurdly naïve in believing a witness.” NLRB v. Universal Camera Corp. [II], 2d Cir. (1951), CP 408:

        • Thus, “we can no longer agree that [the Board] was free to overrule the examiner’s conclusion that Weintraub’s delay in complaining to Kende was because he had been waiting for Chairman to resign.” J for D (employer).

    • Notes:

      • If the Appellate Court can review the same evidence as the Board, what is the Board contributing to this process? Are they just a filter? Are they something else?

  • Allentown Mack Sales and Serv. v. NLRB, US (1998), 204:

    • Facts: Allentown conducted a poll of its employees to determine if support existed for the union. Under NLRB rules, an employer who believes a union no longer enjoys the support of the majority of its employees has three options: (1) request a formal, NLRB-supervised election, (2) withdraw recognition of the union and refuse to bargain, or (3) conduct an internal poll of employees support for the union. Under NLRB precedent, for the latter two options, an employer must be able to show a “good faith reasonable doubt” about the union’s majority support. The union appealed to the NLRB that D’s polling was improper. ALJ: J for P (union). Affirmed by Board. The employer appealed, but the Board’s decision was affirmed. Reversed (J for employer/P in this case) by the Court.

    • Holding [Scalia]: The Board’s ruling that the employer lacked a good faith reasonable doubt was not supported by substantial evidence on the record as a whole; thus, “on the evidence presented to the Board, a reasonable jury could [not] have found that Allentown lacked a genuine, reasonable uncertainty about whether Local 724 enjoyed the continuing support of a majority of unit employees.”

    • Reasoning:
      • Although the Board’s (NLRB’s) adoption of a unitary standard that requires the same factual showing to justify a poll (option 3) as to justify an outright withdraw of recognition (option 2) is “puzzling,” it is not irrational. It is “facially rational and consistent with the [NLR] Act.”

      • Nevertheless, the standard was incorrectly applied b/c the Board seemed to be requiring an actual finding (“head count”), rather than reasonable belief, that the union lacked majority support.

      • The Board improperly discounted some testimony by employees (including one employee who had testified that “the entire night shift” did not want the union, and another who said that “if a vote was taken, the union would lose”).

    • Dissent [Breyer]:

      • The reasonable doubt must be based upon “objective considerations.” In this case, the Board had reason to discredit some of the testimony, based upon objective considerations; e.g. some of the employees’ statements were made in the context of employment interviews for the newly-created company.

  • Policy considerations:

    • “Why not leave factfinding to the agencies, reserving only questions of law for reviewing courts?” (CP 417). “If administrative agencies were free to find whatever facts they pleased, without regard to the evidence or the reasonableness of inferences that might be drawn from the evidence, agencies could alter the operation of statutes or legal rules so as to change their meaning. For example, if the NLRB were free to ‘find,’ regardless of the evidence presented, that any employee discharge was motivated by anti-union bias, the National Labor Relations Act would be transformed into a legal guarantee of employee tenure.”

C. Judicial Review of Agency Interpretations of Law

  • Policy considerations

    • Institutional competency: Agencies have expertise that makes them better qualified than judges to make certain kinds of policy decisions; e.g. technical vs. normative decisions.

    • Democratic accountability:

      • Congress, which controls interpretations in step 1, is democratically accountable.

      • Even in step 2, Congress can be held accountable because it has delegated authority to agencies. Additionally, the President can be held accountable by voters for agency actions.

      • Re: Mead, if the process does not allow sufficient democratic input or due process, then the decision is not owed deference, thus allowing the court to ensure accountability by evaluating the validity of the decision.

        • Counter: The judiciary is less democratically accountable than agencies.

    • Legislative supremacy: Only Congress has the authority to decide who can make law.

    • Harmony/rule of law: Chevron allows there to be a coherent meaning across the country, rather than disjointed meanings interpreted by different courts in different places. Also at issue are the consistency/inconsistency of agency interpretations and public reliance upon those interpretations.

    • Separation of powers re: Seminole-Auer deference: Congress is not allowed to interpret its statutes; that function is left to the Executive branch. So, why should an agency be allowed to interpret its own regulations?

    • [Breyer], p1202n4: The current system of requiring courts to defer to agencies about matters of law, “where courts are more expert,” but to conduct independent, “in-depth” reviews of agency policy decisions, “where agencies are more expert,” seems to be backward.
    • In contrast to the premise of “Chevron step 0,” [Breyer], in his FDA dissent, argues that the case for agency deference is actually stronger when it involves a major issue, which is more likely to spark political interest and, thus, to increase accountability on decision makers.

  • Seminole-Auer analysis

    • Is the agency interpreting its own regulation?

      • If yes:

        • If the interpretation is plainly erroneous or inconsistent with the regulation, it is invalid.

        • Per Gonzales v. Oregon (1242), if the regulation merely “parrots” or is a paraphrase of statutory language (“boot-strapping”), then proceed to Chevron analysis, considering the interpretation to be of the parroted statute.

        • Otherwise, the interpretation is entitled to “super-deference.”

      • If no, and the agency is interpreting a statute, proceed to Chevron analysis.

  • Chevron analysis (defer if the Agency has authority and expertise):

    • 0. Has Congress granted the Agency to make interpretations with the force of law?

      • (a) Is the ambiguity interstitial (i.e. “filling in gaps”) or major? See [O’Connor] in FDA. – e.g. undoing an entire regulatory scheme? If so, then Congress has presumably not granted such authority.

      • (b) or, per Mead, has Congress explicitly conferred upon the agency general delegation to regulate with the force of law (as indicated by relatively formal, democratic processes like formal adjudication or notice and comment rulemaking) and implicitly delegated authority in the specific area by leaving an ambiguity in the statute being interpreted?

        • If yes, proceed to Chevron step 1.
        • If no (e.g. re: agency pamphlet, internal agency guideline, or a non-precedential ruling like the Customs rulings in Mead), proceed to Skidmore analysis?

    • 1. Has Congress spoken directly to the issue such that the text of the statute, as determined by using all the tools of statutory interpretation, is unambiguous (clear)?

      • Yes: The Agency’s action must be consistent with the statutory meaning. (Even if it is, though, this is not considered deference.)

      • No: ->

    • 2. Is the Agency’s interpretation a permissible (reasonable) construction of the statute, given the range of allowed interpretations?

      • Yes: The court defers to the Agency’s view.

      • No: Remand to the Agency to reconsider.

  • Skidmore analysis (defer if the Agency is persuasive):

    • Court decides on a case-by-case basis whether to defer to the agency’s determination, based upon “thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, … [its] power to persuade,” and the agency’s expertise.

      • If the court is persuaded by the agency’s reasoning, then the courts defer to the agency’s construction of the statute, which then becomes binding precedent, unless the agency later persuades the court to a new interpretation.

      • If the court is not persuaded, the court rejects the agency’s interpretation of the statute, and substitutes its own binding interpretation or remands to the agency for further analysis and interpretation.

  • Cases:

    • Chevron, U.S.A., Inc. v. Natural Resources Defense Council, US (1984), 1197:
      • Facts: Under amendments to the Clean Air Act (CAA), “new or modified major stationary sources” of air pollution (e.g. new factory smokestacks) are subject to more stringent emissions standards and pollution limits than older sources. The EPA engaged in notice and comment rulemaking and promulgated a rule that if a single plant or factory changes a smokestack or erects a new smokestack, as long as it offsets the new pollution from the new smokestack by equal reductions from other smokestacks in the same facility or “bubble,” the new smokestack is not considered to be a “new source” and does not trigger the more stringent standards. The NRDC sued, arguing that the EPA’s interpretation of the term “stationary source” was incorrect.

      • Holding: (1) The term was left ambiguous, granting the EPA the authority to interpret it. (2) The EPA’s interpretation is reasonable.

      • Reasoning:

        • Congress intended to balance the competing interests

          • (a) economic interests in permitting capital improvements to continue and

          • (b) environmental interests in improving air quality.

    • Sweet Home [Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, US (1995), 868]:

      • Facts: Section 9 of the Endangered Species Act of 1973 makes it unlawful to “take” endangered species within the U.S., and it defined “take” to mean to “harass, harm, pursue, hunt, shoot....” The Secretary of the Interior promulgated a regulation in 1975 to include causing “significant habitat modification or degradation” within the meaning of “harm.” A group of loggers and others challenged the Secretary’s definition of “harm.” D.C. Appellate Ct. agreed with Ps. R’d.

      • Holding [Stevens]: Secy’s interpretation was reasonable in light of the statute.

      • Reasoning (not clear if Stevens is in step 1 or step 2 of Chevron):

        • Textual analysis shows that Secy’s def is reasonable:

          • Ordinary meaning: The dictionary definition of “harm” = to cause hurt or damage to.

          • Surplusage: “harm” should be read in the list so as to have a distinct meaning from the other terms (“harass,” “pursue,” etc.).

        • Intentionalism/Purposivism analysis shows that Secy’s def is reasonable:
          • The Act purposed that endangered species would be preserved at any cost. Ps’ reading of the statute would frustrate this purpose, which violates the Golden Rule of avoiding absurd results

        • Dynamic Statutory Interpretation/Acquiescence (cf. Bob Jones Univ.): A 1982 amendment, passed after the Secy’s ’75 regulation, indicates that Congress understood §9 to prohibit direct and indirect harms b/c the permit process for “incidental” harms cannot be interpreted to allow permits for direct, deliberate action against a species.:

        • Legislative History analysis shows that Secy’s def is reasonable:

          • Congress clearly intended “take” to be applied broadly.

          • The Commerce Committee’s removal of a provision is not explained in the hxy, but presumably it was too broad and not as “moderate” as the regulation at issue.

          • The hxy of the 1982 amendment indicates Congress had habitat modification in mind.

      • Dissent [Scalia]: Secy’s definition of “harm” is unreasonable b/c it does not concur with the statute’s unambiguous meaning.

        • Golden Rule: Prohibiting incidental habitat destruction on private lands will lead to financial ruin for some.

        • The promulgation regulation is not supported by the statutes authorizing Secy to act.

        • Ordinary meaning: “take,” applied to wild animals, means to reduce them, by killing or capturing, to human control.

        • Whole Act/Whole Code: “take” was intended to refer to direct and intentional acts to particular animals.

        • Noscitur a sociis: interpret a general term to be similar to more specific terms in a series (labeled ejusdem generis by lower court)
        • Expressio unius: §1536 expressly prohibits habitat modification, indicating Congress could have expressly included a similar phrase in §1538 if Congress had intended for the sections to have similar effects. By omitting such a phrase, Congress presumably did so intentionally and purposefully.

        • Presumption against redundancy (among separate provisions): §1536’s prohibition against significant habitat modification is made “almost wholly superfluous” by the Secy’s regulation.

        • In regard to Purposivist arguments, “there is no substitute for the hard job (or in this case, the quite simple one) of reading the whole text.”

        • Legislative Hxy by the floor mgrs indicates that habitat modifications, addressed by §1536, and takings, addressed by §1538, “were viewed as different problems.”

    • MCI Telecommunications Corp. [& FCC] v. AT&T, US (1994), 1204:

      • Facts: 47 USC §203(a) requires communications common carriers to file tariffs w/ the FCC, and §203(b) authorizes the FCC to “modify any requirement” of §203. The FCC interpreted “modify” to allow the Agency to make the tariff requirement optional, and the FCC granted exemptions from the requirement to nondominant carriers. AT&T, the dominant carrier, sued. J for P (AT&T). A’d.

      • Holding: “Modify” is unambiguous, and the Agency’s rule was not in compliance with its clear meaning.

      • Reasoning:

        • Chevron 1: Plain meaning - “to modify” means to change incrementally. The alternative meaning provided by Ds is in only one dictionary and is contradictory with other dictionaries and even the dictionary in which it appears. For, if the word “modify” means two contradictory things, “it will in fact mean neither of these things.” Also, the dictionary used was not in existence when the Act was passed.
        • Chevron 2: Since meaning is not ambiguous, have to interpret the regulation in regard to the statutory meaning. Since the Agency’s detariffing policy makes more than an incremental change, its interpretation goes beyond the statute will bear and is not entitled to deference.

      • Dissent [Stevens]:

        • The text of §203(b)(2) “plainly confers at least some discretion to modify the general rule that carriers file tariffs, for it speaks of ‘any requirement.’” Section 203(c) “squarely supports the FCC’s position....” “Dictionaries can be useful aids in statutory interpretation, but they are no substitute for close analysis of what words mean as used in a particular statutory context.”

        • Dynamic Statutory Interpretation: The policy goals of the statute are served by the FCC’s interpretation of “modify.” The Communications Act of 1934 was passed to regulate telephone rates because of the monopoly that AT&T had on the market.

          • Note: This is not a Purposivist argument, because it wasn’t about the how the Act’s purpose should influence the meaning of the Act. It was about the fact that the Act’s purpose has been frustrated, and so maybe the meaning of the Act should be changed.

        • Thus, Stevens would defer to the FCC’s rule.

    • FDA v. Brown & Williamson Tobacco Corp., US (2000), CP 459:

      • Facts: The FDA asserted jurisdiction over tobacco and sought to regulate sale of tobacco to minors. The FDA concluded that nicotine is a “drug” within the meaning of the term under the organic statute (FCDA), which defines drugs as substances that “have significant pharmacological effects” and are intended to “affect the structure or any function of the body.” Since nicotine does cause dependency/addition, the FDA argued that cigarettes/tobacco should be regulated because they are a “drug delivery device” (like orange juice can be to LSD). The tobacco companies sued. J for P (tobacco). A’d.
      • Holding [O’Connor]: “It is therefore clear, based on the FDCA’s overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the question at issue and precluded the FDA from regulating tobacco products.”

      • Reasoning:

        • Historically, Congress has established a separate legislative and regulatory framework for tobacco (that has presumed tobacco would not be regulated by the FDA).

        • Subsequent legislative history indicates a balance struck between addressing the health effects of tobacco and protecting the economic factors of tobacco’s production and distribution.

        • The FDA itself has disavowed authority to regulate tobacco in the past.

        • FDA jxn over tobacco violates legislative intent b/c

          • it is based upon the labeling of tobacco as a “drug,”

          • but the FDA would have to ban tobacco products since there is not a safe level of the drug.

          • A complete ban on tobacco products contrast with congressional intent that tobacco products remain on the market.

      • Dissent [Breyer]:

        • Textually, tobacco falls within the statutory definition of a “drug.”

        • Purposivism: The FDCA’s “basic purpose – the protection of public health – supports the inclusion of cigarettes within its scope.”

        • DSI: Relatively recent scientific evidence of the adverse health effects of tobacco usage have changed the context of the statute.

          • The implications of the legislative history means that Congress was trying to find other ways to regulate since the FDA wasn’t asserting jurisdiction, but now that there is new science, this legislation doesn’t make the FDA’s actions invalid.

    • U.S. v. Mead Corp., US (2001), 1213:
      • Facts: The U.S. Customs Service (Agency) made a tariff classification ruling that Mead’s daily planner is a “diary.” Mead sued. The Agency contended its ruling was due deference, per Chevron. J for P (Mead). Vacated and remanded to apply Skidmore analysis.

      • Holding: Although the Agency’s ruling did not have a claim to judicial deference under Chevron since Congress did not intend for such a ruling to carry the force of law, “under Skidmore, the ruling is eligible to claim respect according to its persuasiveness.”

      • Reasoning [Souter]:

        • If Congress expressly or implicitly delegates authority to fill statutory gaps, based upon “the agency’s generally conferred authority and other statutory circumstances,” Chevron analysis prevails and the agency’s interpretation is “binding in the courts unless procedurally defective, arbitrary and capricious in substance, or manifestly contrary to the statute.”

        • In this case, the statute does not indicate that Congress intended to grant the agency to make such rulings with the force of law.

          • Most importantly, the statute provides for independent reviews by the CIT of such rulings, indicating they were not intended to be binding in a general sense.

          • Agency practice, such as churning out 10-15K such rulings in a year throughout 46 scattered offices argues against the rulings’ being effective as generally binding law.

      • Dissent [Scalia]: I thought there was a clear, binary rule under Chevron. If the statute is ambiguous, defer to agency interpretation only if reasonable.

        • The majority rule means courts “must supposedly give the agency view some indeterminate amount of so-called Skidmore deference.”

        • The formality of an agency’s procedures is not correlated with its authority.

        • Skidmore deference leads to ossification, due to its binding effect.
        • “Justice Jackson’s eloquence notwithstanding, the rule of Skidmore deference is an empty truism and a trifling statement of the obvious: A judge should take into account the well-considered views of expert observers.” In today’s era of regulation, “Skidmore deference is a recipe for uncertainty, unpredictability, and endless litigation.”

    • Gonzales v. Oregon, US (2006), 1228:

      • Facts: Oregon enacted ODWDA by referendum to legalize doctor-assisted suicide. The drugs prescribed for assisted suicide are regulated under the federal Controlled Substance Act (CSA). In 2001, the AG issued an interpretive rule that concluded the use of controlled substances to assist suicide is not a legitimate medical practice and is, therefore, unlawful. The publishing of the rule in the Federal Register was less formal than n&c rulemaking but more formal than the issuance of an agency guideline or pamphlet.

      • Holding: “The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA’s registration provision is not sustainable.” “[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” FDA.

      • Reasoning [Kennedy]:

        • “The CSA gives the AG limited powers, to be exercised in specific ways.” So, no explicit grant of the requested power. And no implicit grant b/c “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Assns., Inc.

        • Even under a Skidmore analysis, the AG’s interpretation is not persuasive.

        • In the alternative, the AG argued for Seminole-Auer super-deference as an interpretation of the agency’s own 1971 regulation. However, because the regulation merely restated (“parroted”) language in the statute, the issue remained statutory interpretation.

      • Dissent [Scalia]:
        • Under a Chevron analysis, the AG’s directive is valid. “The Attorney General’s discretion to determine the public interest in this area is admittedly broad – but no broader than other congressionally conferred Executive powers that we have upheld in the past.”

        • The majority’s argument that “control” is a term of art defined in the statute is incorrect. The ordinary meaning of the term “control” gives the AG the requested authority.

        • Even if the rule were entitled to no deference, “the most reasonable interpretation of the Regulation and of the statute would produce the same result” b/c “legitimate medical purpose” does not include assisted suicide.

        • The statute grants to the AG exclusive authority to register and deregister; since Congress made the factors so vague, it implicitly granted the AG authority to interpret those criteria.

        • Textual: exlusio unius – By granting the HHS Sec’y specific authority in the sections discussed by the majority, the lack of such authority in the registration provisions indicates the statute does not grant it.

        • Even if the issue were of purpose or statutory design, a reasonable design could have been to leave prosecutorial discretion with the AG.

        • In regard to Seminole-Auer super-deference, it’s not clear that “parroting” creates an exception. Even if it does, though, the regulation at issue does not just paraphrase statutory language. For example, the regulation interprets “prescription.” Thus, the only remaining question is whether the interpretation is plainly erroneous or inconsistent with the regulation.


Allentown Mack Sales and Serv. v. NLRB 42

American Trucking 30, 31

Benslimane 36

Benzene case 31

Bi-Metallic 36, 37, 39

Bob Jones Univ. v. U.S., US (1983), 1050 27

Cartledge v. Miller 28

Chevron, U.S.A., Inc. v. Natural Resources Defense Council 44, 45

Clinton v. City of New York, U.S. (1998), 373 4

FDA v. Brown & Williamson Tobacco Corp. 47

Fla. E. Coast Ry. 38

Flood v. Kuhn 28

Goldberg v. Kelly 37

Gonzales v. Oregon 44, 48

Hamdi 37

Heydon’s case 9, 14

In re Sinclair 24

INS v. Chadha, U.S. (1983), 1150 4, 10, 32

Londoner v. Denver 36, 37, 39

Lorillard v. Pons 22, 28

Marshall 13

MCI Telecommunications Corp. [& FCC] v. AT&T 46

Montana Wilderness Ass’n v. U.S. Forest Serv. [I], 9th. (1981), 1027 25

Montana Wilderness Ass’n v. U.S. Forest Serv. [II], 9th (1981), 1036 26

Morton v. Mancari 28

Muscarello v. United States, US (1998), 888 20, 23

Nt’l Council of Resistance of Iran 37

Overton Park 39, 40

Perry v. Sindermann 36

Rector, Holy Trinity Church v. United States, U.S. (1892), 695 14

Roth 36

Schechter Poultry 31

Schor 35

Seminole-Auer 44, 49

Speluncean Explorers 11

State Farm 39, 41

State v. Warshow, VT (1979), 595 8, 11

Sweet Home 45

the Speluncean Explorers 9

U.S. v. Am. Trucking Ass’ns 12

U.S. v. Mead Corp. 43, 44, 47

United Steelworkers v. Weber, U.S. (1979), 88 14

Universal Camera Corp. v. NLRB 42

Whitman v. Am. Trucking Assns., Inc. 48

ARS Outline – Hardy –

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