Ultimate Admin Attack Outline

Tools of Statutory Interpretation **Does it look like theres a Scriveners Error? (dissent in Locke) Intrinsic Aids Usage Norms Plain meaning (Locke; but see Brown & Williamson) Ordinary usage at time law passed (MCI & Scalias 6 dictionaries) (Compare Watson (holding trade of drugs for gun not use) with Smith (holding trade of gun for drugs is use)) Definitions section of statute (Babbitt; but see Scalias dissent & anti-derogation canon) Last Antecedent Rule: modifier only applies to antecedent that immediately proceeds it (But see Hayes) Ordinary usage of grammar & punctuation, i.e. read text to avoid linguistic oddities (Hayes) Settled legal usage: akin to dictionary (Casey) May v. Shall: mandatory language means no discretion to take account of equitable/policy factors Singular v. Plural: singular applies to plural; male to female (& vice versa) Technical meaning: may require moving beyond plain text Anti-Surplusage Expressio unius est exclusio alterius: expression or inclusion of one thing implies exclusion of all others (Marshall; Chadha). Specificity may be motivated by immediate circumstances & represent clarifying response. May be rebutted by general background norm. (Mancari) AND/OR: pay attention to use of these words Ejusdem Generis: if theres a list of specific items followed by general catchall phrase, read general phrase to include only items of similar nature to specific ones. Does not apply if one specific term separate by disjunctive from catchall. (Ali) Hard to resolve ambiguity without some resort to purpose of statute (i.e. to determine scope of unifying characteristic) Integrative Noscitur a sociis: meaning of ambiguous word or phrase should be determined by words surrounding it. Does not apply with general catchall phrase. Need to find general connecting characteristic to define scope (i.e. may involve discretion & resort to purpose). Whole Act (e.g. title, preamble, findings): provision that seems ambiguous in isolation may be clarified by remainder of statute. Could be used despite plain text to show absurdity. (HTC) Same phrase, different provisions: read phrase same way each time to avoid implicitly minimizing or derogating other provisions of statute (Robinson v. Shell Oil) Extrinsic Aids Institutional/Reference Stare decisis: look to how previous courts have interpreted ambiguity. Statutory stare decisis can generally never be overcome, even if reasons for prior decision gone. Congress must overturn past interpretation through legislation. (Flood v. Koon) Chevron: refer to an executive agencys interpretation Legislative history: refer to individual legislator or Committees understanding of ambiguous phrase Integrative In pari materia: if preexisting or contemporaneous (disfavor later) statute uses same term, interpret term in same way as did with other statute. (North Haven)

Anti-derogation: read ambiguous term narrowly to avoid inconsistencies with common law (dissent in Babbitt) Against Implied Repeal: if later statute is ambiguous, read it to not implicitly repeal earlier statute (Mancari) Specific trumps general: read exception into general statute so that both statutes can coexist (Mancari). Could conflict with canon against implied repeal (Silver v. NYSE) Substantive Lenity: totally ambiguous criminal statute interpreted in favor of criminal defendant. Easier to get to if theres a federalism or avoidance issue (McNally). No use of lenity in Hayes, Smith, Bailey or Watson. Avoidance: if there are 2 possible interpretations & 1 would definitely be unconstitutional, then choose the constitutional one to avoid invalidating statute. Need not have much ambiguity; could go to legislative history to find ambiguity. (NLRB v. Catholic Bishop) Federalism: require a plain statement before favoring an interpretation that would alter the federal-state balance or raise serious constitutional questions (Gregory v. Ashcroft). May result in court carving out large exception in statute that doesnt violate constitution. Little ambiguity needed. Serious means near borders of Congresss powers. Congressional inaction: (1) post-enactment (Congress must have understood activity to be prohibited before by authorizing something -- weak); (2) doing nothing (John R. Sand & Gravel); (3) bill proposed & not passed; (4) bill reenacted comprehensively with changes, but w/o overturning court or agencys interpretation (i.e. implicit adoption; Flood v. Koon). Presumption against preemption: in the case of ambiguity in a federal law that intrudes into area of traditional state power (e.g. tort law, police powers), presume that Congress did not intend to preempt the state law. (Riegel). This canon does no work if Congresss intent to preempt is not ambiguous. Canons: does it cabin judicial discretion? Will it prevent enforcing Congressional mistakes?

Delegation of Authority to Agencies 1. Did Congress delegate too much authority to the agency? a. Schecter Poultry: Congress violated non-delegation doctrine (i.e. delegated too much power) with a statute that had no procedural safeguards, had incredible jurisdiction & a wide scope of criteria discretion (i.e. policy-making discretion) b. Yakus: statute with limited jurisdiction & broad procedure & criteria does not violate non-delegation doctrine c. Whitman v. American Trucking: statute with extremely broad discretion to choose criteria, combined with limited jurisdiction & procedural autonomy d. Benzene: if it looks like an agency may do very cost-ineffective things, Court will read the delegation of authority narrowly unless there is a plain statement from Congress (Compare Gregory v. Ashcroft). e. **Approach NDD problem by referring to fundamental purpose of doctrine i. Strongest purpose of doctrine is to provide adequate basis for judicial review 2. Did Congress reserve to itself too much control over the agency? a. Chadha: Congress cannot veto legally binding decisions of agencies except by Article I, 7 procedures i. What is a legally binding decision by an administrator? In Chadha, it seems to be one that affects private rights. ii. Congress can veto an agency proposal, which has no more authority than a proposal made by a Congressional staffer. b. Bowsher: Congress cannot remove executive officials except by impeachment (Article I, 2, cl. 5 & 3, cl. 6). i. Who is an executive officer? 1. Someone with the authority to enforce a law after it has left Congresss hands. 2. Someone who is not responsible to Congress & is unrelated to Congressional affairs. c. Buckley: Congress cannot appoint executive officials except by Senate confirmation process of advice & consent (Article II, 2, cl. 2) d. **Purposes of limiting Congressional power: i. Encourage careful ex ante delegation ii. Protect Presidents power by preventing Congress from delegating too broadly to itself 3. Does the President retain sufficient control over the agency? a. Perkins: b/c Congress may structure the appointment of inferior officers, it may structure their removal; e.g. Congress may designate that inferior officers may only be removed for cause (inefficient, neglectful of duties, malfeasance of office). i. Upholds Civil Service Act b. Myers: President has authority to fire all non-inferior officers (which Taft defines as WACOS officers); i.e., all non-inferior officers must serve at the pleasure of the President c. Humphreys Executor: only purely executive officers must be removable at the will of the President i. Congress can insulate certain types of non-inferior (i.e. WACOS) officers from removal by President.

ii. If statutory mandate is detailed enough to deprive official of broad policymaking discretion, or if the official performs apolitical & technical duties (e.g. Director of NIOSH) d. Morrison: purely executive officer may be insulated from removal at will of President if President can still fulfill his constitutional duty to see that the laws are faithfully executive (use four factors listed below to determine whether it would not interfere) i. Officer is inferior for the purposes of appointment (& thus Congress may allow officer to not be chosen by President) if - 1. Subject to removal by higher Executive Branch officials (removal for cause) a. Edmonds says that this factor is sufficient for the purposes to make someone an inferior officer (tells us nothing about the relative status of the other factors) 2. Limited duties 3. Limited jurisdiction 4. Limited tenure

Deference to Agencies Auer Is the agency interpreting its own regulation? If yes, defer as long as -1. Correct, politically accountable actor within agency issued interpretation (Martin) 2. Interpretation not clearly erroneous (State Farm) 3. Interpretation not inconsistent with regulation 4. Interpretation not post-hoc rationalization (Chenery I) 5. Interpretation reflects agencys considered judgment 6. Regulation (that went through APA procedures) contains intelligible principle regarding issue agency now interpreting (Gonzales) **Note: agency could avoid limits on Auer deference by proceeding by adjudication (Chenery II) or writing its own regulation instead. Such decisions might deserve Chevron deference. Chevron Step 0: Is the agency acting with the binding force of law, pursuant to a proper delegation of authority? 1. Proper Delegation of Authority a. Mead I: clause in statute must give agency the power to administer it b. Schecter Poultry & American Trucking: statute must contain intelligible principle so that non-delegation doctrine is not violated c. Benzene: if delegation potentially violates non-delegation doctrine, construe delegation narrowly if there is no plain statement d. MCI & Brown & Williamson: infer that Congress did not delegate authority on this issue (e.g. for agency to determine its own jurisdiction) i. Note the circularity that results by bringing in MCI at this stage ii. At Step 1, MCI is used to say that although Congress delegated authority to the agency, it did not intend to delegate a huge policy choice to agency e. Gonzales: if multiple agencies are implicated by the statute, ensure that this particular agency was delegated this particular task f. Martin: correct, politically accountable actor within agency must make decision 2. Force of Law a. Mead II: Congress must recognize the action the agency is authorized to take as having the force of law (akin to a plain statement rule) i. Procedures that demonstrate that the agency action is the result of fairness and deliberation help show force of law (e.g. APA procedures) b. Christensen: merely advisory opinion that does not bind third parties does not merit Chevron deference **If the agency has a proper delegation of authority & its action has the force of law, proceed to Chevron Step 1. If either of these criteria is not met, proceed to Skidmore analysis. Step 1: Has Congress directly spoken to the precise question at issue (i.e. is there an ambiguity for the agency to fill)?

1. Sweet Home: statute not ambiguous when read in light of tools of statutory construction a. Use at least: textual canons, broad or narrow purpose (purposivist v. textualist), legislative history b. Note difference between statute unambiguously favoring agency decision (which would lead to statutory stare decisis) & Chevron deference breaking ambiguity tie 2. MCI & Brown & Williamson: assume Congress did not intend to delegate a huge policy choice to the agency 3. Brown & Williamson: clear Congressional intent may be ratified in statutes & contradict the agencys action a. Counter: other statutes may represent a floor (rather than a floor & a ceiling) 4. Brand X: precedent on point held statute to be ambiguous **If ambiguity remains, proceed to Chevron Step 2. Step 2: Is the agencys rule a permissible construction of the statute (i.e. is the agencys rule reasonable)? 1. State Farm approach: defer to the agencys rule unless it is unreasonable (i.e. arbitrary & capricious). a. Defer as long as agency considered all relevant factors & did not commit clear error. 2. Statutory Interpretation: a. If not all tools of statutory interpretation were used at Chevron Step 1, then defer to the agency so long as it employed the remaining tools reasonably b. Chenery I: reasoning must have been used to justify original decision at time decision was made c. If any canons are left, they are likely to be the ones most replete with policy-making discretion (e.g. federalism canon). **If analysis proceeded to this point, agency probably acted reasonably & so court will likely defer. Skidmore Should the usual tools of statutory interpretation be read in light of the agencys view because of - 1. The agencys expertise? 2. The thoroughness evident in its consideration? 3. The validity of its reasoning? 4. Its consistency with earlier & later pronouncements? a. **Note that agencies may not be able to get Skidmore deference for a decision that changes an earlier position 5. All those factors which give it the power to persuade?

Review of Agency Decision-Making 1. **Outside the Chevron deference context, analyze agency decisions under these tests if its clear that agency has the power to act, but someone asserts that the agency acted incorrectly 2. Review of Any Agency Decision a. State Farm: agency must have (1) considered all relevant factors & (2) avoided clear error i. Did the agency consider all relevant alternatives (all relevant factors)? 1. Likelihood that an alternative would prove attractive? 2. Cost of investigating alternative? 3. Alternatives proximity to action under consideration? 4. Agencys legal authority to implement alternative? ii. Did the agency consider irrelevant alternatives or factors? iii. Did the agency contradict the weight of the evidence (i.e. make decision against clear weight of evidence)? iv. Did the agency give the Court a reason to doubt its expertise (e.g. by offering implausible explanation not based on expertise)? b. Court may take into account change in ideology of administration if that may be considered as part of the statutory framework c. Agency must take prior positions into account & explain the reason for the change i. I.e. prior agency position is a relevant factual factor that must be taken into account (e.g. address factual basis of rule being rescinded) ii. Chenery II: people rely on status quo; there needs to be a balancing when the status quo is changed 3. Review of Agency Notice & Comment Rule a. Nova Scotia: i. Did the agency provide adequate notice? 1. Enough notice so that participants know where to focus their comments (e.g. relevant data, studies, reasons) 2. Enough notice to allow court to perform adequate judicial review ii. Did the agency respond adequately to the comments? 1. Chenery I: court will only consider actual reasons given by agency, so needs to respond adequately to comments in concise general statement 2. Did the agency respond to allow of the major issues & vital questions raised by comments? a. Duty to respond inferred from need for judicial review. Court wants to know from the record whether agency denies legal relevance or factual validity of important comments. 3. **For the response to be adequate under State Farm, the agencys responses to comments must show that it (1) considered all relevant factors & (2) avoided clear error

Executive Orders 1. Does the President have the authority to issue this E.O. under either the Constitution or a statute? a. Statute: i. Interpret the statute to define its scope ii. Does the E.O. have either (1) the effect or (2) the purpose that the statute meant to authorize? 1. Effect: must determine scope of order to know what it affects 2. Purpose b. Constitution i. Core Power 1. **Congress may not limit or take away one of these powers 2. Powers specifically enumerated in Constitution a. Require written opinions of principal officers (OIRA) b. Treaty powers c. Confidential advice d. Commander- & diplomat-in-chief e. Appointment power f. Grant reprieves or pardons 3. Myers, Humphreys Executor, Morrison: Congress cannot insulate from removal by President a particular executive official if doing so would unduly impede the Presidents ability to fulfill his constitutional duty to see that laws faithfully executed 4. Take care that laws are faithfully executed: (i.e. gap-filler-in-chief) a. Scope of this power is hard to define. b. If unclear, better to avoid the question & defer to President ii. Default Power 1. **Congress may take away default power, but it must do so explicitly 2. E.g. execute general protection of personnel & property of federal govt. 2. If the Presidents action is authorized by Congress, does the non-delegation doctrine prohibit this authorization? a. **This question is irrelevant if the Presidential action occurs in the zone of twilight because there is no delegation in that case. b. If the President is not acting in the zone of twilight, is the delegation made pursuant to an intelligible principle? (See Schecter Poultry) 3. Is the E.O. prohibited by some other statute? a. President may be forced out of express or implied statutory authority at this stage b. If President loses statutory authority at this stage, see whether the President posses a core or default constitutional power. i. If no constitutional power, Presidential action is prohibited. ii. Youngstown: implied prohibit b/c Presidential action would affect purely private rights 4. If there is a statutory prohibition, is it prohibited by Article II (i.e. is the statutory provision prohibited by the Presidents core constitutional powers)? a. Congress can prohibit actions taken within zone of twilight or default constitutional powers (In re Neagle) b. Congress cannot prohibit Myers-type action (i.e. core constitutional power)