Vous êtes sur la page 1sur 20

EXAM STRATEGY

BE BRIEF!!! YOU STRUGGLE W/ THIS


o Make the short answers TRULY TINY discrete elements. If
you want to Beef up and be creative, do so AFTER you
get at least the required number of short answers done.
OUTLINE!!!

Side Notes
- feasible (in Benzene) can mean possible, utility-maximizing, requiring CB
analysis (Powell concurrence), etc
- Less deference where leg process is messy: in King v. Burwell, Roberts majority
opinion (of 6) says that Courts should be less faithful to plain words when legislative
process has been messy.
Short answers
Combining multiple args in one short answer is fine
Having a "counter" that is commonsenscial without citing a tool is common
Bunching a ton of tools into one answer doesn't seem to score more points
General for the intermediate (not short but not judicial review questions)
don't overthink, many answers are dumber but also less elaborate than yours.
these tend to be 1- or 2-issue questions. Start by spotting the MAIN most
glaring and neatest-fitting issue (can be whether interpretive ruels can be
retroactive, or what the prerequisites for interpretive rules are, etc.). Dispose
of that issue and MAYBE move on to others
plain meaning/colloquial usage
Purpose/mischief
General interpretive intuition (about 2/3 of tiem as a
coutnerarg)
expressio unius
constitutional avoidance
leg history - report
Lenity
ejusdem generis
scrivener's error
legislative history - sponsor statement
Dictionary
noscitur a sociis
absurdity
"there's no ambiguity; the text is clear" (as counter)
canon against implied repeal
Title
Legislative history - expert testimony
presumption of consistent meaning of words
canon against surplusage
Agencies can't offer post-hoc justification during
litigation
Common usage

1
7
1
4
1
0
9
7
7
7
7
6
6
5
5
5
4
3
3
2
2
2
1
1

Titles are for marketing, often


Legislative history - acquiesence to court ruling
Statutory definition
public policy: court resources

1
1
1
1

How to get out a policy quickly while maintaining force of law


N+C rulemaking [Pros: has force of law; gets deference from courts; gets buy-in; is
democratic. Cons: slow (months); not retroactie.
Fromal adjudication [Pros: flexibility. Cons: merely precedential, so needs to be reapplied
case-by-base; slow.]
informal adjudication: flexible, but merely precedential. Doesn't get much deference
interpretation: binding, but there needs to be something to actually interpret
Guidance: Pros: fast; Cons: gets little deference, no force of law.
Good cause exemptoin [Pros: force fo law; Cons: unlikely to fit the requirements
Best one: interim rule w/ good cause exemption + starting a notice and comment
procedure + formal adjudication of immediate case
Best one: N+C with vague, multi-option NPRM. Then an interpretation of the N+C that will
get Auer deference.
Best one: N+C
how things would change current practice
one appraoch is to list and number all the changes you "spot"
then move on and say literally "the big-picture effect is.." and do analysis of pros/cons
The "analysis" can be numbered too
the answers don't spend too much time thinking about "incentives" and anticipatin
behavior 2/3/4 moves ahead. Go ahead and do this if you want, but don't make it the core
of your answer. Focus on 1 pros/cons analysis and 2 spotting the differences
refer to the "policy" outline and rattle off pros/cons succinctly but with abandon. This
number of pros/cons seems to be what scores points
Agency personnel questions
note that someone with both legislative/executive powers [legislative offiecersh elp
Congress do their job by giving them info. Executive is broadly anything else that looks
executive: implementing laws, etc] --> creates ambiguity but --> if someone has
executive powers/funcitons, Congress can play no direct role in their appointment
Morrison test for pinciplal/inferior with empahsis on edmonds (you know this)
Bowsher: congress can't delegate exective power to an official whome they can remove
Definition of "good cause" in morrrison is BROAD: Exect would retain "authority to assure
that counsel is competently performing his or her statutory responsibilities in a way that
comports with the provisions of the act." [BUT find and quickly dispose of some argument
on the other sisde - i.e. why there was NOT good cause]
Definition of "good cause" in Humphreys is that person can't be fired just b/c POTUS
disagrees
Issues: whether there is STATUTORY authority to appoint remove (read terms of statute);
whethere thre is CONSTITUTIONAL authority (apply familiar test from Class)
Mention aggrandizement when possible

How to pressure an agency not to issue an unfavorable final rule


Approps: 1 threaten to reduce funding; 2 attach riders (Saying agency can't use money to
do XYZ)
Confirmation (senate only): 1 threaten to hold up; 2 offer "stick" of helping w/ his
confirmation; 3 hold up confirmations of subordinates; [4 when acting head has not been
confirmed his actions might seem to carry less weight]
Hearings: 1 be a nuisance by calling agency personnel all the time; 2 hold hearings about
it to raise public outcry; 3 hold hearings to impose burden of preparation;
Letters/Dingelgrams: 1. ask for onerous-to-get information; 2 response is resourceintensive; 3 dingelgram = near-daily bombardment of letters
Statutory authority [but this requires bicameralism and presentment]: 1 threaten to alter
statutory authority in the first place; 2 deauthorize certain positions
CRA: bring disapproval resolution
Only one person raised issue of direct senator involvement in NPRM process
How to get out a policy quickly while maintaining force of law
N+C rulemaking [Pros: has force of law; gets deference from courts; gets buy-in; is
democratic. Cons: slow (months); not retroactie.
Fromal adjudication [Pros: flexibility. Cons: merely precedential, so needs to be reapplied
case-by-base; slow.]
informal adjudication: flexible, but merely precedential. Doesn't get much deference
interpretation: binding, but there needs to be something to actually interpret
Guidance: Pros: fast; Cons: gets little deference, no force of law.
Good cause exemptoin [Pros: force fo law; Cons: unlikely to fit the requirements
Best one: interim rule w/ good cause exemption + starting a notice and comment
procedure + formal adjudication of immediate case
Best one: N+C with vague, multi-option NPRM. Then an interpretation of the N+C that will
get Auer deference.
Best one: N+C
How to pressure an agency not to issue an unfavorable final rule
Approps: 1 threaten to reduce funding; 2 attach riders (Saying agency can't use money to
do XYZ)
Confirmation (senate only): 1 threaten to hold up; 2 offer "stick" of helping w/ his
confirmation; 3 hold up confirmations of subordinates; [4 when acting head has not been
confirmed his actions might seem to carry less weight]
Hearings: 1 be a nuisance by calling agency personnel all the time; 2 hold hearings about
it to raise public outcry; 3 hold hearings to impose burden of preparation;
Letters/Dingelgrams: 1. ask for onerous-to-get information; 2 response is resourceintensive; 3 dingelgram = near-daily bombardment of letters
Statutory authority [but this requires bicameralism and presentment]: 1 threaten to alter
statutory authority in the first place; 2 deauthorize certain positions
CRA: bring disapproval resolution
Only one person raised issue of direct senator involvement in NPRM process

Statutory interp.

new synthesis: 1 exhaust text itself tools [text, whole act, semantic canons]
find ambiguity only then resort to non-textual tools [But on the test: Theres
always an argument for ambiguity.]
Statute can have multiple purposes (Scalia in Gonzalez) the inquiry doesnt end where one
purpose is found.
THE TEXT ITSELF
Common/colloquial usage** presumptively prevails. [Nix (tomato case usage
by main audience prevails); Smith (dueling claims about colloquial usage of use a
firearm); Remember who is the audience?]
Dictionaries can illuminate meanings of words [Smith use a gun case; Note issue
of which dictionary? Dictionary from when? [time of enactment, contemporary] [Welosky:
what did person qualified to vote mean at time of enactment?]
Specialized meanings (other than legal terms of art) presumptively prevail [Goes
back to Who is the audience? ; Sources include trade journals, hearings/testimony
[Corning testimony]; Can also be derived from other statutes, legislative history, etc.
[Continental Can: substantially all = 85%+]
legal terms of art presumptively given their technical definition [WVUH: Scalia
applies perceived legal meaning to attorneys fees; Moskal: claim that falsely made is
a legal term of art]
structural reasoning: various tools to derive meaning of terms from the
structure of the statute itself
Specific provisions govern general provisions; Words presumptively have consistent
meaning throughout statute [AKA WHOLE ACT] [Gustafson (Kennedys opinion):
communication should have same meaning throughout the statute]
statutes own definitional section these definitions presumptively prevail
unless theres an inconsistency or ambiguity that suggests otherwise [Gustafson
prospectus case]
Other [The title - Holy Trinity: title suggested statute was limited to manual labor; Canon
against surplusage (see below), canon of consistent usage (see below)]
SEMANTIC CANONS
Expresso Unius: the express mention of one thing excludes all others
- Natl RR: statute provides for cause of action by AG, so implied exclusion of private
cause of action
- McBoyle: theft of vehicle. statute couldve mentioned airpolanes but didnt.
Noscitur a sociis: a word is known by the company it keeps [The meaning of
words or phrases may be ascertained by nearby words]
- Gustafson: prospectus, notice, circular prospectus similar to notice,
circular
- In tension w/ the below sometimes: noscitur can urge repetitive or overlapping
meanings of the ambig. term w/ nearby terms. The presumption against surplusage
urges the opposite.
presumption against surplusage
- In tension w/ the above sometimes: noscitur can urge repetitive or overlapping
meanings of the ambig. term w/ nearby terms. The presumption against surplusage
urges the opposite.
- Gustafson: broad reading of communication would render notice, circular, etc.
superfluous
presumption of consistent usage within statutes [Whole Act-style reasoning]
- Gustafson: prospectus has same meaning throughout statute
in pare materia: statutes on same subject are to be construed together
- Scalia in WVUH: resolves fee-shifting question by looking at whether other fee-

shifting statutes say attorneys fees or attorneys & witness fees (emphasis
added)
Semantic Canons applying principally to lists
ejusdem generis: a general residual term s/b understood as covering the same
type of item as in the enumerated terms
[Smith: M1 not covered by dagger, dirk, stiletto or other dangerous weapon McBoyle:
airplane not an other vehicle enumerated vehicles are land-based . Yates: other
tangible object does not include fish because list is otherwise comprised of informationcontaining items . Effectively the list version of Noscitur]
last antecedent rule: a modifying term after a list modifies only the last term
serial qualifier rule: a modifying term after a list presumptively modifies all the terms
GROUNDS UPON WHICH TO GO BEYOND THE TEXT
1 absurdity [somewhere between a textual tool & a canon accepted in limited
form even by textualists] [avoid a literal reading where it would lead to an
absurd result.]
- Deep-seated social value that everyone strongly agrees w/: Kirby mail carrier
murder case [widely accepted application, even by textualists]
- Riggs v. Palmer (murder/inheritance case)
- Classic widely accepted example: old ban on drawing blood in the street
- Max stretch of doctrine: Brennan in Public Citizen find a result absurd because of
its purported extension to other situations
- Scalia, seeing no absurdity in King v. Burwell, says avoid absurd result only when
the consequence is so mounstrous that all mankind would, without hesitation,
unite in rejecting the application [probably exaggerating a bit]
2 scriveners error [a type of limited carveout] [ applied mostly for
dates/numbers/grammar/punctioation]
- Does it look like a typo or does it plausibly serve some purpose?
- Does this look like a Congressional compromise on a contentious issue?
- Scalia, in King v. Burwell, sets a high (but not necessarily authoritative) bar by
limiting it to situations where it is patently obvious to a reasonable reader that a
drafting mistake has occurred
- Locke BLM date case
SUBSTANTIVE CANONS [many are clear statement rules!!]
1 Lenity: resolve ambiguities in favor of citizen
- McBoyle vehicle/airplane theft case in favor (Yates also in favor)
- Lockhart, Smith, Moskal falsely made case (against)
- Similar doctrines exist for tax & government benefits, too
2 presumption against implied repeal [& related avoidance canon] [this is a
clear statement rule]
- If the 2 statutes seem irreconcileable stop & think carefully
- If the 2 statutes seem at all reconcileable construe so as to reconcile
- Morton v. Mancari: EEOA did not impliedly repeal BIA Indian employment
preferences
- The canon is especially strong where the implied repeal is hidden in an appropis bill
(TVA v. Hill: appropriations provisions dont repeal by implication any older statute
that make those appropriations unlawful)
3 presumption against broad result buried in a narrow statute [ this is a clear
statement rule]
4 Constitutional avoidance [clear statement rule]
a. Classical: avoid construction that would be unconstitutional
b. Modern: avoid construction that would even raise a serious constitutional question
a. Standard application of modern doctrine (Brandeis): If a first-glance

construction raises a serious constitutional question see if theres a


fairly possible construction that would avoid it
b. Maximum application (Burger, J. in Catholic Bishop: avoid a constitutional
problem unless Coingress provides a clear statement of intent to reach it)
5 avoidance of nondelegation problems
- Stevens plurality in Benzene: reconstrue statute so as to avoid a nondelegation
problem
6 absurdity [somewhere between a textual tool & a canon accepted in limited
form even by textualists] [avoid a literal reading where it would lead to an
absurd result.]
- Kirby mail carrier murder case [widely accepted application, even by textualists]
- Riggs v. Palmer (murder/inheritance case)
- Classic widely accepted example: old ban on drawing blood in the street
- Max stretch of doctrine: Brennan in Public Citizen find a result absurd because of
its purported extension to other situations
[note also Roberts in King v. Burwell: avoid constructions that would defeat purpose of
statute/send it into a death spiral]
EVIDENCE of PURPOSE
mischief: note also King v. Burwell: avoid constructions that would defeat the whole
purpose of the statute
Legislative history [IN ORDER!!]
1 committee & conference reports
- Some report content gets less weight than others [citation of court cases in
Blanchard]
- Premise is that (other than the statute) the reports are the closest indicia of what
members actually read & vote on
2 statements of individual members
Some get more weight than others:
- Sponsors > nonsponsors
- Prepared statements > off-the-cuff statements
- Floor statements > hearing statements > statements inserted into the record later
(Because this third type of statement can be cooked to manipulate legislative
history, e.g. Continental Can: ex-post insertion by Durenberger)
- High stature member statement > low stature member statement
3 bill history & rejected proposals
4 floor & hearing colloquies
5 views of non-legislative drafters of the legislation (such as experts & so on)
6 legislative inaction/acquiescence: If Congress fails to overturn a court decision, this
might be evidence that Congress acquiesces to it. [but not too persuasive since
Congressional inaction might simply reflect gridlock and calendar issues]
7 subsequent legislative history
- One notable example is POTUS signing statements, the use of which has grown over
time
Less deference where leg process is messy: in King v. Burwell, Roberts majority opinion (of 6)
says that Courts should be less faithful to plain words when legislative process has been
messy.

Non-delegation doctrine
Critical takeaway: this doctrine is alive in name only: only two invalidations ever, both in
1935
Is there an intelligible principle? (from JW Hampton, 1928) [this is unlikely to
be violated]
- Whitman v. Am. Trucking (2001) court unanimously upholds regulation w/ broad
phrasing including requisite to protect public health
- Invalidate only when impossible to ascertain whether the will of Congress has
been obeyed (Scalia in Whitman)
a. Indeed, judicial review seems to be a big driver here
- Yakus (cited favorably by Scalia) instructed agency to be generally fair &
equitable
What we want: 1 For Congress to make big policy decisions; 2 For Courts to be able to
exercise judicial review; 3 For agencies to be able to implement Congressional directions
without judges substituting their judgment for those of agency bureaucrats
BUT see Benzene (1980): a court can construe a statute so as to avoid a
nondelegation problem
- Stevens plurality rejects as violating nondelegation Governments interp. that the
statute didnt require the risk from a toxic substance to be quantified before calling
it significant & issuing regs [statute directs OSHA to establish standards
reasonably necessary & appropriate to provide safe employment, & to set the
standard which most adequately assures, to the extent feasible, on the basis of the
best available evidence, that no employee will suffer material impairment of health
or functional capacity.
See also Whitman: agency cant cure unlawful delegation simply by exercising
less discretion
ALSO: the degree of agency discretion thats acceptable depends on the scope of
delegated power (Whitman)

Congressional & POTUS Control of Agencies


On test: before evaluating the constitutionality of a statute w/ an
appointment/removal issue, address any issues presented of whether the statute has
been followed
- This includes whether there is in fact - good cause to fire someone (which broadly
means being competent & following statutory responsibilities in a way that comports
w/ the act) (does NOT mean mere disagreement)
- Aggrandizement is critical to this discussion
Legislative veto = unconstitutional (INS v. Chadha)
- A legislative veto is a form of a legislative action
- ALL legislative action must go through bicameralism & presentment
a. so all one-house vetoes & votes are per se unconstitutional
b. so are two-house vetoes & votes w/o presentment to POTUS [unless passed
by a veto-proof majority]
- ONLY way for Congress to invalidate an agency action is by actually passing a
statute
Other legislative powers over agencies
- Oversight (Hearings & investigations can drain resources & create PR problems;
information-forcing like letters w/ tough questions)
- Threat to change authorizing statute
- sunset provisions in statutes forces an agency to play nice if it wants to stay alive
- Appropriations/power of the purse includes both the threat to withdraw funds & the
threat to impose onerous riders on appropriations bills
- A+C (Senate only) confirmation power
- Government-wide statutory controls (e.g. NEPA)
-

CRA, 1995
- All major rules have to be submitted to Congress, & are delayed by 60 days
- If Congress doesnt like a major rule, it can veto it through a joint resolution
(bicameralism + presentment or veto-proof majority)
Proposed REINS Act
- Would replace CRA w/ affirmative approval of regs
- Would create confusion about regs & probably strike down good regs
- Constitutional concerns: 2nd bite at legislative apple
OIRA Review
- Applies only to rules (not orders) & to significant policy guidance documents (but
not interp. rules)
- OIRA is like a thesis advisor: critiques, comments, asks questions, etc
- OIRA presides over inter-agency process: resolves disputes & also circulates regs to
other agencies
- IRCs currently participate in OIRA annual planning but dont have to submit regs to
OIRA.
Clinton EO 12866 remains leading authority
- Goals: enhance planning/coordination, reaffirm agency primacy, restore integrity &
legitimacy, increase openness & transparency
- Agencies shall examine whether reg is duplicative
- Annual planning increases inter-agency coordination & transparency
- Significant regs ($100 mln plus OR adversely affect the economy, productivity,
jobs, the environment, etc) submit to OIRA first & do cost-benefit analysis [note
CBA is also encouraged for all actions whether significant or not]
OIRA & POTUS can both direct (through directives) agencies to take regulatory actions
- Sierra Club v. Costle: if agency has discretion, POTUS may influence its decisions

but may not actually direct the agency to take an action that is not supported by
the record
AGENCY PERSONNEL STUFF
Side note Congressional agents
- An agent of Congress (one removable solely by Congress) cannot exercise
executive functions. (e.g. Comptroller General in Bowsher)
Side note: IRCs probably argue for weaker POTUS control but the same tests apply
- Removal restrictions
- Multi-member boards w/ partisan balance
- Staggered terms
- These are a way to insulate agencies from POTUS control & politics in general. Not
too much caselaw & whats allowable in this space.
principal vs. inferior
- Edmonds test: is the officer subject to supervision or removal by a higher officer
other than the President?
a. [this is the main factor, but not always conclusive because, for example, SG
is removable by higher officer but clearly a principal officer]
- Remaining 3 factors from Morrison: limited duties/tasks? Limited jurisdiction?
Limited tenure [time-limited OR single-task-and-done]?
- Note that in Morrison the indep counsel was inferior
Appointments:
- Principal officer can only be appointed through A+C
- Inferior officer Default rule is A+C
a. but can also be appointed by POTUS alone, by heads of departments, or by
the Judiciary
i. Morrison: Indep Counsel appointable by special court;
ii. Buckley: 2 of 6 voting members of FEC were appointed directly by
HR, 2 were appointed by Senate, & all 6 were subject to confirmation
by BOTH houses of Congress unconstitutional
iii. Congress can play no role in appointment other than through advice
& consent
- Congressional restrictions short of Buckley are an open question: can Congress, for
example, specify qualifications for an appointment? Here you can argue policy
about POTUS control, constitutionality, etc.
Removal: Typically potus will want to remove someone, & question is can he do
it?
Congress can insulate an officer from POTUS removal [but not directly involve itself in
removal per se] so long as this doesnt interfere w/ POTUS ability to take care that laws
are faithfully executed [this is unlikely to be violated]
- Principal v. inferior is key step but not conclusive. Run through the factors anyway.
That said principal officers probably cant be subject to restriction
- For-cause restrictions are permissible but some POTUS removal power must remain
- 3-factor balancing test from Morrison
a. Scope & nature of the function [how central is it to historical/constitutional
executive power? E.g. war & foreign policy powers no removal restriction]
b. Degree of remaining POTUS power to monitor & hold accountable his
subordinates [e.g. in PCAOB, 2 levels of for-cause restriction were too much]
c. Whether theres a valid reason to impose the removal restriction
i. [this prong is mostly about distinguishing Congressional
aggrandizement from non-aggrandizement]
ii. but its also about whether the role should be insulated from politics
[think the Federal Reserve & IRCs!!]
- Old law: Myers (Postmaster case): POTUS removal power over A+C appointees is

illimitable; Humphreys: illimitable powers confined to purely executive officers

Agency Actions
What we want: 1 High-quality rules; 2 Democratic accountability; 3 Meaningful judicial
review; 4 Rules w/ broadly accepted legitimacy; 5 Meaningful participation by stakeholders
[SK seems not to be too focused on this per se]
Basic mechanics on agency action
- APA provides a procedural floors & default rules
- Additional reqs. may come about due to agencys own internal policies, the
constitution, government-wide statutes like NEPA, EO 12866, etc
- Congress can increase procedural reqs. by changing enabling act or passing a
government-wide statute
- POTUS can increase reqs. by issuing E.O.s or directives
- Courts cant add to APA procedural reqs. [Vermont Yankee rulemaking); PBGC v.
LTV [adjudication] except 1 where agency action encroaches on constitutional/due
process issues & 2 where agency has made an abrupt & unexplained departure
from prior procedure
- Chenery II: agency can choose whether to do rulemaking or adjudication [although
courts tend to prefer rulemaking for filling gaps in an enabling act]
a. EXCEPT [rarely] for abuse of discretion of violation of enabling acts
language [NLRB v. Bell]
- State Farm: rescission of an agency rule is subject to the same standard of review
(in this case 706 arbitrary & capricious) as original promulgation
Challenging agency actions: when you challenge post-rulemaking enforcement, the
relief you might get is likelier to be narrow. When you challenge the rule itself postpromulgation but pre-enforcement, you might vacate the whole rule
Is it a rule or an order?
- Rules are prospective policies w/ future effect: an agency statement of general or
particular applicability & future effect designed to implement, interpret or prescribe
new law or policy. (APA 551(4))
- Orders are everything else (APA 551(6)). Orders can act like precedent but cant be
purely prospective (NLRB v. Wyman-Gordon)
- Note that current practice is different from the old (Londoner & Bi-Metallic)
distinctions of individiualized v. general & equal or disproportionate effect, but old
distinction remains influential
Per Bell & Chenery II, the agency gets to choose whether to pursue a rulemaking or an
adjudication, subject to some of the limitations & issues below.
Why choose formal:
- better insulation from partisan influences
- greater legitimacy
- better record for judicial review
- better decisions
Why choose informal
- time & resource costs
formal decisionmaking may give better organized groups an unfair advantage

THE APA

RULES:
future
minded,
can be
either
indl or
general

ORDERS:
pastoriented

Formal rulemaking ( 556 & 557) need special language to trigger: on


the record after opportunity for an agency hearing; (or very similar
language, FL EC RR) abundance of procedural reqs, including hearing, ev.,
insulation, ALJ. Policy: A&C. Law. Chevron (Always Passes Mead)
[almost resembles adjudicatory procedure]
Informal rulemaking Policy: A&C. Law: Chevron (almost always passes
Mead)
APA is mostly silent on this. Party is allowed to have lawyer present 555b, &
notice of agency denial must be accompanied by brief statement of grounds
for denial 555e
Formal adjudications ( 556, 557, 554): Policy: A&C. Law: Chevron
(Always passes Mead)
[1 initial notice of time/place, jur, matters of law, etc per 554b ; 2 presided
over by ALJ per 556b; 3 proponent of the order bears burden of proof 556d; 4
right to counsel 555b; 5 at hearing parties present their case, submit rebuttal
evidence & cross examine 556d; 6 ALJ decision must be based only on formal
record; 7 no ex-parte communication b/w ALJ & agency on merits of
proceeding]
Informal adjudication: no section specifies particular procedures, but see
555. Can have counsel. If government denies you requrested relief, they have
to let you know. Overton Park hard look review. Policy: A&C. Law: Mead.

Why choose rulemaking or adjudication:


- Breadth of reach
- Size or concentration of affected industry how many times do you expect to take
this action
- Depth of examination of particulars of each case
- Efficiency vs flexibility (how much do you foresee circumstances changing)
- Whats the best way to information-force?
Rulemaking
1 agency will get more/better information; 2
process is more efficient if agency expects
to see large numbers of similar cases; 3
although the regulated entity will have less
weight in the process, it may have more
certainty & a clearer rule; 4 avoids
inconsistent/ unpredictable/ unfair case-bycase results; 5 avoids potential underinclusivity of adjudication; 5 promotes
fairness by providing advanced notice &
broader participation to affected individuals
; 6 promotes clarity; 7 allows agency to
better control its agenda by shaping scope
& pace of rulemaking

Adjudicagtion
1 agency can retain flexibility as new
situations arise & tackle the policy issue
gradually; 2 adjudication can avoid
potential over-inclusivity; 3 may avoid
increasing procedural burdens of
rulemaking (e.g. OMB/OIRA review,
environmental & regulatory impact
analyses, etc); 4 retain flexibility to make
modification; 5 avoid conflicts w/
congressional overseers b/c adjudication is
somehow less visible & more impregnable
to political attack; 6 avoid overinclusiveness & under-inclusiveness by
making situation-specific determinations

Adjudication
Bell Aerospace: Strongly reaffirms Chenery II & says an agency can announce new
principles through adjudication
a. But notes that the issue at bar was particularly well suited through
adjudication, so maybe its not generally applicable?
Chenery II: agencies can make new law through adjudication.
a. EXCEPT [rarely] for abuse of discretion of violation of enabling acts
language
See also NLRB v. Wyman-Gordon: An agency can announce a new rule through
adjudication, but it cannot apply it only prospectively (e.g. we wont apply it here
but rather moving forward)
Agency can use adjudication to fill in gaps of vague regulations (Chenery I, Bell)
Retroactivity of an adjudicatory order is NOT necessarily fatal (Chenery II)
Retroactivity is evaluated according to the following factors (from Retail, Wholesale
& Dept Store Union v. NLRB) [these tend to favor the agency] [the factors balance
the harm of retroactivity w/ the mischief of a bad result]
a. Whether Its a case of first impression (Every such case is retroactive. First
impression retroactivity is more acceptable)
b. Whether the policy is filling a void or instead abruptly departing from
established practice (fills void retroactivity OK)
c. The extent to which the party against whom the new rule is applied had
been relying on earlier policy
d. The extent of the burden that the retroactive order imposes on that party
(e.g.)
e. Whether theres a statutory interest in the new rule

Informal Rulemaking / 553 / N+C


Informal rulemaking = notice + comment + concise general statement of reason/basis for
final rule
Notice = NPRM in the federal register
- Includes: legal authority, either terms or substance of the proposal or description of
subjects & issues
- Provides fairness
- Under Nova Scotia, this req. is to be understood as facilitating meaningful
comment
- Most common violations are when the final rule is very different from NPRM, &
when the agency relies on non-public data
Nova Scotia: NPRM requires disclosure of pertinent data on which the agency relied [but
see cb 569: agency may rely on its own expertise outside the record, sometimes]
- If data are devd by agency or is unpublished. must disclose or at least identify
(Portland Cement)
- If data are publicly available & agency is relying on them probably should
disclose (Nova Scotia)
- BUT per Chamber v. SEC, disclosure may be relaxed when the data is very
ubiquitous & reliable
When data comes late in the process reopening for comment may be necessary
- Rybachek: 6k pages of addl data supported the original conclusion, so no
reopening was necessary
- Ober: additional data changed the conclusion, so reopening was necessary
Supp. notice? This becomes necessary when an agency substantially modifies a rule in
right of comments
- Classic test is logical outgrowth [essentially comes down to foreseeability]
- An agency cant materially alter the issues involved (Chocolate Mafrs: USDA
final rule makes an abrupt & unannounced change by kicking chocolate milk out of
WIC)
- Another test, from CSX, is whether the interest parties would have anticipated
that the change was possible, & whether they should reasonably have filed
comments about that potential change during the comment period
Agencies can avoid supplemental notice by:
- Making an NPRM a range of possibilities (e.g. we are looking at X but welcome
comment on Y & Z)
- Engaging stakeholders before issuing the NPRM
- Make the NPRM vague (but this may run afoul of the basic notice req.)
- Do some kind of 2-step comment period
Comment period educates the agency & improves the rule, provides for democratic
accountability, improves the legitimacy of the rule & allows for meaningful judicial review
& oversight
- Per NS, this is read together w/ notice req. because notice allows for meaningful
comment
Concise general statement of reason & basis: often neither general nor concise,
must be issued 30 days in advance of rules effective date [this is partly to facilitate
judicial review]
- Major issues of policy; why the agency acted as it did, etc (Nova Scotia)
- Must respond to any vital questions/objections raised by the comments (NS)
- Must respond to any substantial comments on important issues in the rulemaking
(NS)
- Must also address concrete proposed alternatives
- A reasoned explanation is good; cursory explanation is not (quoting NS)
Challenging a rule: a regulated entity seeking a waiver cant challenge the underlying
rationale & can only challenge the application of the rule to a specific party of set of facts

(Pac Gas)
Retroactivity: Agency cant use rulemaking to make retroactive rule unless the statute
expressly allows it
Changes to & rescissions of Rules same standard of review [state farm]
- agency must, per FCC v. Fox,
o Acknowledge prior policy
o Demonstrate that new policy is statutorily permissible
o Give reasons for new policy
o Doesnt have to get into the weeds of why the new policy is better than the
old one
To modify & withdraw an N+C rule, you also have to go through N+C (State
Farm)!!!!
Exceptions to N+C
Certain Subject Matters, 551(a): military, foreign affairs, agency management or personal,
public property or contracts [still get force of law]
Non-legislative rules, 553(b): [no force of law] [dont create new duties or rights]
- rules of organization or procedure
- interpretive rules [see below]
- general statements of policy (aka guidance) [see below
Good Cause Interim final rule, 553(b): [still has force of law] when agency finds for good
cause that notice & comment is
- impracticable = emergency/urgency [post-9/11 airplane regulations]
- OR unnecessary = uncontroversial, routine, insignificant, etc [typically when an
agency invokes this exception it just issues a final rule & if there are any objections
then itll issue an NPRM] [uncontroversial change to date of tax day]
- OR contrary to the public interest [very rarely invoked] = necessary to prevent
undesirable anticipatory or evasive behavior such as in price control regs or tax
situations
Guidance (e.g. memos, speeches, press releases, manuals, etc.) [no force of law]
- Guidance merely announces what the agency seeks to establish as policy
- Regulated entities can challenge the application of guidance & the underlying
rationale, unlike w/ actual rules, the underlying rationales of which generally cant
be challenged before the agency (Pac Gas v. FPC)
- Today agencies submit guidance for OIRA review, but a new administration may
change this
- Once a policy laid out in guidance is actually applied to a party, the party may
challenge both the application of the policy & the underlying rationale, & the
agency has to defend the rationale essentially de novo
- Why we want it: Efficiency; Clarity/certainty/transparency; Consistency of
nationwide application of policy
How agency can signal that its doing guidance
- Dont use words like must or shall
- Call the document a general statement of policy or otherwise guidance, memo,
policy letter, etc (each agency will have their own terminology)
- Dont hold self out as being binding or submitting anyone to any duty
- Guidance must be prospective (Chamber v. DOL) & leave agency decisonmakers
free to exercise discretion in individual cases
- Courts will not tolerate guidance as a way to circumvent rulemaking reqs.: When
the agency applies the policy in a particular situation, it must be prepared to
support the policy just as if the policy statement had never been issued
- Pac. Gas & Electric v. FPC: Ct. finds that FPCs policy statement: was non-

legislative because, inter alia, it had not created a legally binding norm
establishing the rights of pipeline companies or their customers
Interpretive Rules
Test is whether the rule has the force of law, whether it interprets (rather than adding to)
any legal duties. Four factors in identifying this [from American Mining Congress] [Note an
affirmative answer to ANY of these questions legislative rule]
- Whether in the absence of the rule there would be an adequate basis for
enforcement [if the reg provides an independent basis for enforcement seems to
have force of law]
- Whether it is published in CFR seems like a law (*this factor is less important)
- Whether the agency has invoked its legislative authority in issuing the interp. (e.g.
whether the agency says its legislative)
- Whether the rule amends a prior legislative rule seems legislative
Hoctor (Posner): to be an interpretive rule, it must actually interpret an existing ambiguity
in regs or statute, rather than create new substantive duties [fence height rule for exotic
animals is arbitrary, & is a legislative act] [e.g. to be interpretive, it must look interpretive]
- Dont want agencies to faux-legislate & call it an interp.
- The agency hadnt construed the terms appropriate or strength to mean 8
feet, but rather had transformed that general req. into a new & specific req.
- Suggests that numerical rules (& maybe very specific bright-line rules in general)
probably cant be considered interp.s b/c they are likely to be arbitrary [arbitrary
= could well be different without significant impairment of any regulatory
purpose] (cb 661-2)
- This is partly about allowing interested parties to comment & participate
Other thoughts
- Interpretive rules, unlike guidance, can be binding on the agency if they are
interpreting a binding provision. A stakeholder cant really challenge the interp.
w/in the agency but can still take the issue to court
- However, if an interpretive rule is invalid, it gets no Auer deference
- Changing interpretations: Perez v. MBA: Rejects Paralyzed Veterans rule that
180s of interpretive rules require N+C & instead holds that interpretive 180s are
eligible for the same APA carveout as original interpretive rules
- Judicial Review: interpretive rules get Auer deference if theyre interpreting an
agency regulation. If theyre just interpreting the statute, the most they can get is
Skidmore respect

Judicial Review of Agency Actions


Overarching flowchart:
FIRST challenge to the agencys interp. of the statute : Do Chevron Step Zero
thru 2 Say if agency doesnt get Chevron, theyll get Skidmore respect
SECOND consider challenge to agency procedures as insufficient (see above for
N+C reqs, etc)
THIRD challenge as arbitrary & capricious
FOURTH briefly consider any Auer issues (maybe)
FIFTH any other issues (e.g. agency acts based on unconstitutional appointment
or removal)
Basic Mechanics & principles
- Chenery I: reviewing court will consider only the basis for the agency action that
the agency proferred in its original action (e.g. rulemaking, adjudication, etc), &
wont consider any post-hoc rationalizations
- Congress has entrusted agencies not courts w/ the primary role of deciding
how to administer the enabling act
- In Chevron-land, a courts judicial construction of a statute will trump an agencys
construction only if the courts construction leaves no room for discretion by
deciding it, effectively, at Step 1 (e.g. only if the court holds the statute is
unambig.). [Brand X]
- Questions of law (parameters of agencys authority, the definition of a key
statutory term) Chevron
- Questions of policy arbitrary & capricious
Courts Powers of Review
- Enforcing APA procedural reqs. (VT Yankee: cant add new ones to 553, though)
[see some of this above]
- enforcing other statutory reqs. & constitutional reqs.
- Hearing challenges about whether agency has actually followed its enabling
statute
- Reviewing agency decisions to ensure theyre not arbitrary & capricious
- Setting the outer bounds of agency discretion through Chevron/Mead
- Reviewing agency interp.s of its own regs through Auer (for now, at least)
APA 706 Standards of review two relevant ones for our purposes
The reviewing court shall set aside agency actions, findings & conclusions found to
be:
- In excess of statutory jurisdiction, authority, or limitations, or short of statutory
right [Mead/Chevron]
- Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance w/ law
The Mead/Chevron decision sets the outer bounds of agency discretion by
defining the terms of the authorizing statute. This can mean excluding some
factors as irrelevant (such as policy considerations in Mass. V. EPA) or requiring
considerations of other (impact on industry in Nova Scotia).
Judicial Review at various stages of the rulemaking process
- Decision not to undertake rulemaking [very deferential, but courts can compel
agency action if required by statute, as in Mass v. EPA]
- Decision to change course after already starting rulemaking still quite
deferential but less so.
- Decision to make a rule arbitrary & capricious
- Decision to revoke or change a rule arbitrary & capricious. The agency has to
document &/or explain how it got to the change in its decision. [see State farm &
Fox v. FCC]

Review of Agency Policy Decisions: arbitrary & capricious / hard look


In practice, this is deferential
- Was action beyond the statutory authority?
- Did agency disclose the information it was relying on?
- Dont substitute judgment for that of agency (State Farm)
Arbitrary & capricious if: [State Farm] [substance & procedure are interrelated]
- [procedural prong] [examine relevant factors]
o agency has relied on factors Congress has not intended it to consider [look
at the statute] [Mass v. EPA: EPA can only consider statutorily-based factors]
o agency entirely failed to consider an important aspect of the problem [e.g.
things that come up in N+C process] [State Farm]
o also: if agency failed to respond to relevant comments
o also: if agency failed to consider a viable alternative [Overton Park, State
Farm airbags case]
- [substantive prong] [clear error of judgment]
o as proof that agency examined relevant factors, it must explain
o articulate a rational connection between the facts found & the choice
made. [State Farm]
o agencys explanation runs counter to the evidence [uncommon] [but
invoked w/ some caution in State Farm. See cb 719]
o decision is so implausible that it cant be ascribed to expertise or reflects a
clear error of judgment. [extremely rare]
Changes to & rescissions of Rules same standard of review [state farm]
agency must, per FCC v. Fox,
- Acknowledge prior policy
- Demonstrate that new policy is statutorily permissible
- Give reasons for new policy
- Doesnt have to get into the weeds of why the new policy is better than the old one
To modify & withdraw an N+C rule, you also have to go through N+C (State
Farm)!!!!
Judicial review questions (any one of the below paths invalidates the rule)
if there's an interpretive statement, challenge the interpretation (gets Auer if it's
interpreting a reg, but can be invalidated if it is plainly inconsistent with the regulation)
AND challenge whehter it's a valid interpretive rule (e.g. if it's actualy interpreting
anything. Hoctor)
Challenge as exceeding statutory aurhotiy (always gets Chevron. Pass mead quickly and
get right into Step 1 statutory interpretation)
Even if no Chevron, gets skidmore respect [a few answers go to this step; many dont;
those that do dispose of it in a very short paragraph]
Challenge procedure of N+C (Nova Scotia, Chocolate Manufrs.) (some answers put this
under A+C.) (note also that reversing longstanding practice of procedure MORE than APA
requires does not make the agency vulnerable because of VT Yankee but it might still look
bad for the agency's overall procedural self-justification)
Longstanding agency practice that goes beyond APA: must be followed only if its an
internal agency statutory requirement. Probably not enforceable by court under VT
Yankee.
the agency will tend to want auer, at least many answers start with "the agency will argue
for auer"

consider issues of rescissions


The issues that come up are not exotic: Chevron/Mead/[skidmore]; substantive
A+C; procedural [A+C; pre-chevron stuff from eaarlier in the semester like
Hoctor, Nova Scotia, etc]; occasionally something else but don't overthink it. If
it looks like somethign else has come up, try to fit it into one of the above
buckets. otherwise dispose of it in a SINGLE breif paragraph
Chevron Substantive Review of Agency interp. of enabling Act
[remember Chenery I: review only on grounds asserted by agency in original
decision]
STEP ZERO [Mead/Christensen]: Does the statute being implemented by the
agency grant it authority to make binding law & has the agency acted pursuant
to that authority? Does it appear that Congress intended Agency interpreations
to have the force of law?
- Example: in King v. Burwell, the IRSs interp. of the tax credit provision was not in
question because the Internal Revenue Code unquestionably gave it authority to
interpret tax statutes [even though the case was per se about the ACA]
- If a statutory interp. is connected w/ an agency action that carries the force of law
Proceed to Chevron Step 1
- If an agency interp. fails Step Zero analyze under Skidmore.
How do we decide whether Congress intended for agency interp.s to have the
force of law?
1 the most important indication is Congressional authorization to employ
relatively formal procedures
- All formal proceedings always pass Mead & N+C rulemaking has a strong
presumption of passing.
- By contrast, informal adjudications, guidance, & interpretive rules probably fail.
2 Other Factors [which might save even informal orders]
- Does agency decision an official position rendered at a relatively high level &
central office?
- Are the agency actions binding on third parties?
- Does agency have expertise?
- Were they made w/ careful deliberation?
- What are the procedural safeguards?
- How many of these decisions? 4 decisions per year or 40,000? [no Mead for
unpublished agency decisions, Customs decisions made 1000s of times a year by
46 regional offices]
- Was decision long-term & consistent?
Step 0.5?? Roberts majority of 6 in King v. Burwell: if its a major question or
Congress could not have delegated it to an agency lacking the precise expertise for the
area dont proceed to step 1 (IRS doesnt decide healthcare policy) [no elephants in
mouseholes]
STEP ONE: Has Congress spoken directly to the precise question at issue? Can
we identify Congresss unambigly expressed intent? Is there clear
Congressional intent on the issue of statutory interp.?
- Unambig. Congressional intent Thats the only lawful interp.
- Ambig. Proceed to Chevron Step Two
How do we decide? Use all traditional tools of statutory construction, per
Chevron, & the key question is: is the statute ambig. [This includes other legislation
(Brown & Williamson). MCI: Scalia & Stevens employ dueling dictionaries]
STEP 1.5?? various **rare** exceptions
- Chevron deference is premised on the theory that ambiguity constitutes an implicit
delegation, but ambiguity doesnt ALWAYS mean delegation

Ambiguity doesnt necessarily lead to Chevron if the agency rule in question is not
promulgated pursuant to authority Congress has delegated official (Gonzales v.
Oregon AG did not have authority specifically to declare illegitimate a medical
standard of care)
- This is true when theres a major question (a question of great economic &
political significance) (FDA v. Brown & Williamson.) [no elephants in
mouseholes]
STEP TWO: is the agencys interp. permissible?
Use statutory interp. tools, & be extremely deferential
[Step 3: Agency applies new interp. after a court has already upheld another interp. in
prior judicial review]:
- A courts judicial construction of a statute will trump an agencys construction only
if the courts construction leaves no room for discretion by deciding it, effectively,
at Step 1 (e.g. only if the court holds the statute is unambig.). [Brand X]
SKIDMORE RESPECT
Give appropriate weight to agency interp. based on.
- The thoroughness evident in the agencys consideration
- The validity of the agencys reasoning [this is a basis-style req.]
- The consistency of this interp. w/ earlier & later pronouncements [this is not about
fair warning; its about policy consistency]
- All those factors which give the interp. the power to persuade, if lacking power to
control [this is more of a catch-all] [includes whether the interp. is within agencys
expertise]
Gonzalez: AGs opinion fails Skidmore because Controlled Substances Act & case law
amply support conclusion that CSA is about combatting recreational drug abuse,
because the Act delicates medical decisions to HHS & CSA otherwise is very careful about
allocating powers. [uses structural reasoning, statutory interp., etc & finds that it all
strongly disvafors AGs reading]
Review of Agency Interp. of Its own Regulations
This Auer deference is near-absolute unless its plainly erroneous or inconsistent w/ the
regulation.
- Interpreted regulation must be ambig.
However, 3 justices now oppose Auer & it seems to be hanging out by its fingernails as even
supporters are lukewarm. (see, e.g. Perez 4 conservative justices say theyre saving
dealing w/ Auer for another day. The majority rules without even citing Auer)
Gonzalez v. Oregon established another exception to auer deference: when the regulation
merely parrots the statute. [Minority of 3 disagree, though this may not be authoritative
doctrine]