LEGISLATION & REGULATION OUTLINEI. Statutory Interpretationa. Background: How to make a law: Art. 7i. Member of congress proposes a billii. Initial passage of bill needs a majority vote of Senateiii. House needs to vote and approve billiv. President can either sign or veto1. Committees:a. Bill introduced and referred to committeei. Decides whether to act or refer it elsewhere (shapes it, rewrite or amend) ii. Sent to house with a reportb. Republican party controls committee in house of representativesc. Democrats control senate2. After committee goes to full house of representativesa. Debated (rules committee)b. 60 votes invokes cloturei. makes leg. Process difficultc. Concerned with corruption of powerb. Textualism:i. Ordinary meaning of plain languageii. No special definition/language the normal meaning of the word is given (dictionary)TVA v. Hill

iii. Context of one word is other words around itiv. Any other reading the majority has leads to terrible or absurd consequencesc. 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 hand1. 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 statutec. The dog that didnt bark argument congress silence suggests that this statutory language had this effectd. Purposivism: (Similar to intentionalism)i. Distinction is view of specific legislative intent: what would legislators have done if presented with the same questionii. Counterarguments:1. Congress enacts things according to what they view as positive for the public wheel and well beinga. 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 wheelII. The Letter of the Law Versus the Spirit of the Law: Section A: The Classic Approacha. STRONG PURPOSIVISM v. WEAK PURPOSIVISM: (Riggs v. Palmer dead grandpa with text of will in direct favor of murderer)i. Strong purposivism: Use of statutory purpose to override the clear meaning of the words to fulfill overall purpose1. How to determine purpose:a. FIRST: what was legislators intenti. Assurance in avoiding absurditiesii. Judges believe in fundamental maxims of system (anything that departs from this means that legislature would most likely have avoided)Holy Trinity v. US

b. SECOND: exercise of judicial creativityi. Role of judges overriding text based on purpose (Blackstone)1. Purpose is so clear it cries out2. Advocates of that role has dangerc. THIRD: look at the following:i. The title: helps remove ambiguityii. The mischief rule: What did statute intend to solve1. Contemporaneous events: (evil which it is designed to remedy)a. Situation as it existed and presented to legislature2. Legislative history3. Committee reportsa. 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. purposeIII. The New Textualism: Can discern true meaning of text by proper interpretive work and once you do that, must live with itWVUH v. Casey

a. TEST: Once you have figured out what the correct usage is, then you know the text does not include specific termsi. Should you override meaning based on purpose? b. Congress resolves what it leaves alone: i. *what it wants to do and what it doesnt want to do: evidence is statutory text (when that is unambiguous no variation)ii. Clear text is definitive (rejection of Holy trinity)IV. Modern Versions of Purposivisma. SCALIA: Literalism approachi. When courts use literalist interpretation of statutes, they go astray, then they get the statute wrong because it is not cabined in literal meaning of wordsii. 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 beb. STEVENS: its proof of misreading and not giving effect of Congress intentionsc. Dynamic statutory interpretation (argument): Sometimes disobeying statutory language is necessary because instruction to obey would yield unwanting resultsCommonwealth v. Welosky

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 i. Strong purposivism for the outliersd. Textually Constrained purposivism: only when the text is ambiguousDynamics Land system v. Cline

i. Even a clear text can be overridden to promote justice to trump immediate intentions of the drafter (opposition to new textualists)1. Look at circumstances provided to congress2. Social history 3. Mischief argument: congress might do more than eliminate mischief4. Look at intro provisions whereas clause offers purpose5. Must make an argument that text is ambiguousa. 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. PurposeUS v. Kirby

V. Judicial Correction of Legislative Mistakes: Absurdity and Scriveners Errorsa. Absurdity doctrine: Statutes should not be construed to create absurd 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 exceptions1. To avoid absurd results because leg did not intend absurditya. Definitions:i. Something that contradicts common sense of manii. Judicial obligation to enforce statutory text abates when absurdity would be so monstrous that it would reject all applicationii. Test: where quite possible that congress could not have intended result, and where alleged absurdity is so clear as to be obvious to most anyone1. Where textualism is very influential, safe bet that judges will lean to absurdityVI. What Is the Text? (Scientific or Ordinary Meaning; Legal Terms of Art; and Colloquial Meaning or Dictionary Meaning)a. FIRST: Look at text to decide if looking at purposei. Trigger: is text ambiguous? Judges partial to issues of purpose more likelyb. SECOND: Look at sources to find broad purpose: did congress mean to do more or less with broad purposec. THIRD: Absurdity?i. Public Citizen case: inconceivable congress voted for itii. If in doubt, lean against absurdity (purposivism flavor and not in purposivist time) Barnhart v. Sigmon Coald. SCRIVENERS ERROR:i. Typographical error a court will correct United States v. Locke1. Dissent: Could have been legislative accidente. Absurdity doctrine v. Scriveners error: A.D. are errors in policy judgmentf. Error in expression does not mean scriveners error did NOT occuri. 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 linesg. 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. Heddeniii. Where congress borrows terms 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. VII. 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 Usera. 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. Dont override truly clear text with anything else but ambiguous text you can override1. 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. Coloradoi. Need to flesh out details by delegating responsibilities to committeesii. Lesser of two evils: committee representative of legislative intent (outside pressure from special interest groups, exec agency or president)VIII. Legislative History II: The Textualist Critiquea. Train v. Colorado: Test is what the statute says: Court agrees with Texti. Weight given to committee reports because of the colloquy discussionb. Reasonableness: What is reasonable? Blanchard v. Bergeroni. 12 Factors (Scalia disagrees: history being manufactured non-reliance v. manufactured support 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 DriversIX. Legislative History III: The Relevance of Legislative History After the Textualist Critiquea. Opinions are NOT the law: STATUTES are the LAW. (Easterbook) i. Shouldnt 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 courtsii. Looking at committee reports delegates responsibility to congress to dictate law (if also looking at dictionariesnonpartisan)c. Easterbrook: leg history is not for intent but used as evidence of a meaning, a definition thats 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. Brennane. Legislative history may shed light but not authoritative Exxon Mobil CaseX. The Judicial Power and Equitable Interpretation; and Canons of Construction I: Introductiona. JUDICIAL POWER: Today judges look at leg. History (skeptically) unlike strict textualistsi. 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 statute)US v. Marshall: LSD blotter paper

a. Departure from legislative supremacy vs. fix the lawi. 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 listeda. Shouldnt normally read the last clause (any other thing) to change the subject of the first clause2. 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 passedXI. Canons of Construction II: The Semantic Canons, Especially Expressio Unius, Noscitur a Sociis, the Presumption Favoring Consistent Meaning, and the Presumption Against Surplus Languagea. 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 timeb. 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 excludedii. 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 soiii. Presumption of Consistent Usage: Identical words used in different parts of the same act are intended to have the same meaning Gustafson v. Alloyd Company1. Objecting Argument: Dual Use: broadly and Term of arta. Want the whole word to carry meaningiv. 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 statutesv. 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 itvi. 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)XII. Canons of Construction III: One More Semantic Canon (Ejusdem Generis), and the Substantive Canon of Constitutional Avoidancea. 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 kind1. 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. Smitha. Stabbing Weapon: which COMMON THEME are you supposed to pay attention to: Easily concealedb. 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

ii. OBJECTING ARGUMENTS: Congress intent is clear:1. Extracts clarity/ejects inclarity2. Legislative history argumentXIII. Canons of Construction IV: The Substantive Canon Constraining Federal Regulation of State Government Functionsa. Avoidance Canon: When youre 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 interpretationi. One should be reluctant as a judge to overturn actions as unconstitutional unless you have to1. 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 enactments1. Dont 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 questiona. Protects values of constitutionc. Clear Statement Rule: A clear statement is required before a court can construe a federal statute interfering with a fundamental statute of states sovereigntyGregory v. Ashcroft

i. Anyone reading act can tell that is what congress meant to do1. Rationale: Insists on more clarity for interference of sovereigntya. No serious constitutional question, but serious const. concern2. Judges are protecting the serious constitutional concern/value around federalism even though there is no mitigable constitutional issue in this caseXIV. Delegation of Legislative Power I: The Nondelegation Doctrine and Its (Partial) Demisea. Federalism Clear Statement Canon: Congress needs to be explicit, and if not statute will lack clear statement1. Even though there isnt a serious const. question, court requires clear statement in order to read statute as having an effect on state statuteii. 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 interpreted1. Separation of powers is apparent: vesting clauses of each article pertaining to each brancha. Evidence of blending: i. Veto power requires advice and consent of the senate. ii. Agencies only assist congress with the powers they haveiii. Const. does not have no delegations restrictionsiv. Necessary and proper clause: allows congress to fulfill their right/powers necessary for carrying into execution of the foregoing powersv. 2. APA delegates authority to develop specific rules3. Agencies create rules and regulationsa. Anything govt working in4. Congress creates statuteXV. Delegation of Legislative Power II: Nondelegation as a Substantive Canon of Interpretationa. A substantive canon justifies choosing a reading which may be less than the best reading or most natural reading because it avoids the constitutional problemb. 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. Hamptonii. Non-Delegation is toothless (Scalia) iii. Has had one good year, and 211 bad ones Whitman caseiv. 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 ArlingtonXVI. Congressional Control of Agencies: The Legislative Veto and Other Toolsa. Quasi Legislative authority can be delegatedi. Can only delegate provided it comes with an intelligible principleb. 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 interpretationc. 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 principled. Legislative veto: statute providing for a legislative veto exercising power, passing resolution Chadhai. Legislative power can be exercised is through bicameralism and presentment1. Quasi Legislative: Explains why its different when an agency makes rules vs. congress. Difference: intelligible principle which constrains the agencys discretione. Necessary and property clause: strong argument for congressional abilityi. *dont just only look at text to see if theres a provision for how to point, but check text to see if theres a provision for discretionXVII. Appointment and Removal of Executive Branch Officers: Foundations a. Myers:: Multi member commission: members can only be removed for inefficiency (neglected duty) or malfeasance in officeb. If pres doesnt have one of those, no statutory authority to do soi. Quasi Legislative/Judicial: Agency is acting this way but NOT in an executive fashion1. 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 you2. Pres authority to fire people engaged in carrying law of US can be restricted by congress if it choosesXVIII. Appointment and Removal of Executive Branch Officers: The Modern Approacha. Non-Delegation Canon: Has no teeth at all, congress can delegate quasi legislativeb. Legislative veto: Serviceable way that congress could produce risks of arbitrary or nondemocratic decisions. Need to check legislative vetoc. Appointments and Removals: Whoever has power, has some authority over people appointed. Some sort of control over officials in administrative agenciesi. Default rule: unless congress says otherwise, Pres nomination, advice and consent and withholding from senateii. Congress cannot remove any officer other than by impeachmentd. Humphreys Executor: Congress can limit presidents removal poweri. For Cause Removal: marks creation of whats often called a quasi independent agencye. 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 counsels duties1. Counter Argument: *Scalia doesnt know how thats possibleii. Certain Limited duties: no duty to formulate policy or no administrative duties1. Counter: *Scalia: not much of limitationsiii. Limited in jurisdiction: scope of jur. Is narrow and limited to function1. Counter: *Scalia: might be small, but still within it exercises more than the full power of the attorney generaliv. Limited in Tenure: Only accomplishes a single task1. Counter: *Scalia: not limited by a time limit but by a function, which can go on for a long timef. Edmonds: Inferior officer test:i. 3 of the 4 factors dont 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 senateXIX. Overview of the Administrative Process: Adjudication and Regulation, Formal and Informala. Administrative Procedure Act: Constitution for agencies: necessary and proper clause gives congress power to do more regulation administrative statei. Formal: Regulate procedures of formal adjudication and rulemaking: creates roughly like a regular trial1. Hearings, presiding employees, powers and dutiesa. Companies may want formal because you have chance to lobby against agencies, delays in hearingb. More time to prepareii. Informal: Doesnt say much, rule making and then theres everything else1. Notice2. Public has the opportunity to comment3. Once over, needs to publish an explanation of whats been adopteda. Agencies want informal because:i. Time constraints, less effort, less oversightiii. Any party requesting a hearing, needs to set forth evidence adducediv. 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 rulemakingXX. Notice-and-Comment Rulemaking: The Paper Hearing Requirementa. When N&C are required: shall give interested person the opportunity to participate with submission of written data.b. Notice of Hearings: subsection appliesi. 553: Notice and comments no right to oral hearingii. Hearing: any opportunity to have your view considerediii. adjudication requires some sort of hearingiv. rulemaking does not require hearing1. Rulemaking: when people are equally effected, puts a financial burden on certain people. Same rule applies to diff people have diff effectsv. If its a general rule: due process requirements are no more than what APA states: notice/comment rulemaking1. Notice and Comment:a. Purpose and major policy issues should be raised by agency (burden is on the agency to respond and articulate rationally to avoid overturn)XXI. 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 (terms).i. Need to include the terms of the rule!ii. Satisfy Arbitrary and Capricious: Need to have a rational response meaningful in comments b. Where theres logical comments, should change rulec. TEST: Logical Outgrowth Test: Idea that logical outgrowth is in character with original schemei. If agency makes changes as a result of comments and changes are the logical outgrowth of the original proposal then they dont need another round of notice and comment1. Is the new rule logical outgrowth? a. Must be logicalb. Looking at particular circumstances with view to figure out was there enough notice to give the parties opportunity to commentXXII. 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 Farmi. FIRST: Standard way to interpret those words: figure out whether arbitrary is a term of art1. SECOND: If so, then figure an appropriate way of interpreting statuteb. 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 doesnt 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 agencys action based on what it says i. Policy rationale: Times are changingd. Rational based on relevant factors and within scope of authority delegated to agency by statutee. Must consider whether decision was based on a consideration of relevant factors and whether there has been a clear error of judgmentf. Three part test: State Farm Casei. (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 problemiii. (3) offered an explanation to its decision that runs counter to agency, or so implausible1. agency HAS to say it2. 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 agencys path can be reasonably discerneda. STATE FARM REASONING: Arbitrary and Capricious:i. Common sense of data is so clear, that because agencys failure to articulate their rational is fatalii. Clear error NOT in ultimate choice but clear error in not justifying choiceg. 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&Cii. Congress says dont think about X iii. Pretty demanding standard of review.h. Review of arbitrary and capricious:i. Justice Whites 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 considerb. Entirely failed to consider an important aspect of the problemc. Offered an explanation for its decision that runs counter to the evidenceXXIII. Chevron I: Judicial Review of Agency Statutory Interpretations The Modern Approacha. Chevron changed the way that the circumstances of that deference was giveni. 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 issue1. 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 effecti. At step 1 you have to do all of the things that current rules of statutory interpretation2. Chevron only applies to Administrative procedure act3. Negative: Administrative procedure act, not administered to everyoneii. STEP TWO:1. If not, court does not impose its own direction, question for court is whether the agencys answer is based on a permissible/reasonable construction of a statutea. Suppose court says this is not the best interpretation, then permissible/reasonablei. 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 proceeding1. interpretationsii. Accept agencys reasonable permissible reading even though you dont think it is right, so long as it is reasonable and permissible then it is acceptable1. Statute being ambiguous opens up some range, doesnt mean its open season2. Should a court reasonably accept agencys 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: explicit2. Two: implicitd. Sometimes delegation is implicit vs. expliciti. 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 capricious2. Standard for implicit delegation is: reasonablea. Two diff standards of reviewb. When an agency interprets a law implicit/explicit:i. Reasonable/permissible1. The expression in this context of the arbitrary and capricious standard of reviewXXIV. Chevron II: Chevron, Textual Analysis, and Structural Inference in MCI Telecommunications Corp. v. AT&Ta. agency expertise: deep in detailsi. Democracy argument: agencies are more democratic, entitled to choose policy1. Promotes consistency of federal law: make agency have its own interpretationb. STEP TWO of CHEVRON: why does court conclude step 2 has been passed? MCI casei. How is it reasonable?1. Reasoned and detailed articulation of the basis of the agencys judgmenta. Decision involves reconciling conflicting policiesi. Why give deference to an agency: they are accountable: agencies (compared to courts) are democratically accountable1. Conflicting policiesa. Who resolves? Want politically accountablei. This is an instance where agency is acted reasonably and permissibleb. Agency also considered the matter in a detailed fashionii. Courts reasoning for saying agency acted reasonably and permissibly:1. Problem called for expertise and democratic accountability and agency confronted in a detailed and reasoned fashioniii. Conflicting policies: How do we know? Court says ita. arbitrary and capricious reviewc. Chevron Step 2 Review: Regulatory scheme technical complexi. Agency considered in detailed reasonable fashion1. Reconciled policy objectivesa. Deferential flavori. Court embracing deference to agencies? (maybe) at least when initially handing down Chevron did result in deference to agenciesii. Only get to step 2 if you get by step 1 MCI CASE!! (Statutes meaning is clear) doesnt matter how deferential step 2 is, clear meaning in step 1 controlb. 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 adoptedb. Canon: Expresio Unios: stating one exception to agencys power to modify, whatever left out was meant to leave out, so all other possible modifications are OK because not ruled outb. All adds up to textualist basis to Scalias understandingd. Counter Argument to TEXTUALIST CHEVRON ANALYSIS: STEVENS:i. Argument: From purpose: derived from legislative history1. 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 words2. Scalia would NOT have anything to do with legislative historyii. Legit tools of statutory interpretation: need to run tools of statutory interpretation to determine meaning1. 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 burdeningXXV. Chevron III: Chevron, Semantic Canons, and Terms of Art in Babbitt v. Sweet Home Chapter of Communities for a Great Oregona. Chevron looks at 3 elements worth considering:i. Need for agency expertiseii. Agency considered matter in detailed and reasoned fashioniii. Decision involves reconciling conflicting policies:1. Agencies are more politically accountable than courts areb. 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 notii. State farm test and 3 elements overlap extensively with chevron elements in particular state farm says that the:1. Agency failed to consider relevant factors2. Did consider contradictory factor3. Consideration was so implausible it conflicted a. Conflicts with chevron: agency considered matter in detailed and reasoned fashionc. Chevron step 2 satisfaction:i. Look at chevron step 2s consideration1. Perfectly legitimate to look at State farm for supplementary guidance whether Chevron Step 2 has been satisfiedd. MCI CASE IS STEP ONE DECISION: Scalia stops at ordinary meaningi. Scalia for majority says statute in question has a clear meaning: contrary to agencies interpretation1. Step 1 says if congress has spoken clearly, thats the end of the matter: what it has said controlse. Chevron step 1: court looks at statute but not just words but using traditional tools of statutory interpretationi. 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 interpretation2. Inference of broad judicial philosophies but also tool work using statutory interpretationa. Stevens says consider broad purpose and pick meaning of broad purpose of statute XXVI. Chevron IV: The Limits of Chevrons Domain a. MCI:i. Scalia: Step 1 case: decides statute clearly precludes meaning agency has given it regarding modifyii. Stevens: Statute survives step 1, and gets to Step 2:1. Stevens opinion, Dissent: Second example is how to do a step 2 analysis2. Commissions reading cannot be termed unreasonablea. Page 786: commissions reading is informed by a practical understanding of role. Commission has looked at the roleb. Informed as ours is not: Agencies have expertise and we should conform to their expression3. Stephens quotes agency in chevron: regulatory scheme is technical and complexa. Expertise referenceb. Decision reconciles conflicting policiesc. Tension between rate filing system : statutory policyd. And goal of fair policy i. Not same kind of reconciliation with chevronii. Doesnt have to be similar policy types of conflictiii. Agencys consistency is another way of showing reasoned and detailed thinking1. regulatory scheme is technical and complexb. At step 1 courts job is to look at statute in terms of all tools of statutory interpretationi. With one exception:1. No strong purposivist or strong intentionalist argumenta. Strong purpose/intention will overturn the meaning of clear text b. Weak purposivism is okay: can be construed in light of its purposei. Chevron says to use traditional tools, but not traditional tools that are rejectedc. Re: Babbit:i. Stevens broad purpose argument: broad purpose of ESA supports Secys 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 law1. Deduction of broad purpose of law is used to decide by what means2. Deeply skeptical of pushing text off true meaning on basis of notions or broad purposed. Legislative historyi. permit provision if you can permit it, you can otherwise prohibit it, therefore support meaning of harm to permit habitat degradatione. Court removed the language because it made further than it wanted to go1. Legislative history is worth looking at with carea. 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 takingb. No response to that part of legislative historyf. Counterargument: you could very well deal with similar definitions of harm throughout the statuteXXVII. DECEMBER 18, 2013: REVIEWa. For any TEST:i. FIRST: state the test1. Say something about each element in order2. Multiple tools of statutory tools of interpretationb. Congress tells an agency to make rules : Do Xc. Not intelligible principlei. Intelligible principle: what congress tells the agency it is to use as its guideline in performing task1. Intelligible principle: with view to promote automobile safety

d. Chevron vs. Statefarm re: greater intrusiveness with State Farmi. State Farm: has agency in use of law which is clear properly applied to factsii. Chevron illustrates a step 2 analysis: START HERE1. If looks like things are two fine under Chev step 2, chances are its okay, but wouldnt 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 2b. 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: safety1. Did apply facts re: seatbelts and airbags in arbitrary and capricious way2. Chevron: Issue is what does the statute meana. A/C of whether agencies interpretation of the meaning of the law is correct or note. 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 counsels dutiesb. Limited in jurisdictionc. Limited in Tenured. Limited in dutiesiii. 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 not1. 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 use1. As they were used when they were enacteda. 1934 statute: dictionary in 1934 that something means x new textaulist will say thats what it meansb. Textualist interpretations of statutes says yes we want to know what statute originally meant, but way we figured out is determining what its words meantg. Kent v. Dulles: pg 400i. Featured broad delegation, (stat easily read of broad)ii. Secretary grant passports, no stated limit of what rules can say1. Pres can say you get a passport/dont get a passport on any ground whatsoevera. Nondelegation element to Kent v. Dulles: SC proves not as broad a delegation that the statute reads it out to beiii. Stronger theme here: broad delegation that jeopardizes serious const. question of 5th amendment1. Both themes can be discerned here thoughiv. Court says: no Pres you cannot deny passport on ground that person is communist even though the statutes doesnt have words stating that1. If one interpretation raises a serious constitutional problem, and another interpretation that seems fairly possible, and doesnt raise it, then supposed to choose that other interpretationa. Allow pres to deny const. passports raises serious constitutional problemi. Canon says choose another interpretation: find one.1. Catholic bishop: says anything possible2. In certain cases when constitutional stakes get high enough, court will find room from another interpretation if it has not been specifically rejected3. Catholic bishop: doesnt specifically say statute doesnt apply to religious schools, possible that it doesnt, even though standard reading does imply that it does apply to religious schools.h. Benzene case: interpretation of meaning of statute: had Chevron existed, it would have been applicablei. Term of Art1. 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 doc. 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 much3. Hasnt risen though to a clearer status as the other twoi. Semantic canons: Term of Arti. Presumption of consistent meaning: The same word used in multiple places in the statute means the same thing at the same timeii. 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 matterj. Scriveners error: Tool of interpretationi. 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 exista. Grammatical sentences that are so preposterous that were not written correctlyi. I.e. Arkansas statute that if read, abolished all laws.k. Humphreys Executor & Morrison:i. Myers: dealt with removal of postmaster1. Senate asserted by statute to have power to remove. Myers said unconstitutional, pres should have sole and unfettered power to remove postmaster2. 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 jobl. Humphreys: Myers was true only for officers who were purely executivei. FTC commissioner: that officials job was not really executive very much at all. Only executive in an ancillary sense, commissioners task quasi legislative quasi judicial1. 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 ppla. PROBLEM: Legal: Nobody believes anymore, but heads of FTC are only doing quasi leg and quasi jud. Stuff. People running administrative agencies are doing something fundamentally executive: enforcing law, through quasi leg and quasi jud but STILL executive. Humphreys executor doesnt 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 sensei. Pres isnt able to fire because not executive because they dont work2. 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 powera. Congress has wanted, through quasi independent agency making it hard for pres to fire ppl within agencym. 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 duties1. If not, whether purely/partly executive, you can be protected from cause removal2. If you are, cannot be protected by pres for cause removala. Are you a principal officer or not will impair pres removal but doesnt DETERMINE it either way