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Reg State: 18 January 2012 Logistics: Friday Lunches 12PM, meet at JG 910. Sign up sheet for a group of 5 at the office. Appendix A: US Constitution Art. 1, 1 and 8 Art. 2, 2-3 (CB p. 801, 805-07, 80809.) What does it say about the construction of the government and how the govt should operate? How does the constitution set up the govt of the US? How does the government get created?

Notice the drafting error (Article 1, Section 8): all other Powers vested by this Constitution in the Government. Congress creates the government (the government is entirely the creature of statute). No specific lists of departments or agencies appear in the constitution but it is assumed to be there (mentioned in Article 2 a few times). It is presumed that the framers left it to Congress to provide for the departments. When Congress creates govt what relationship does it have with other departments? Is it a relationship of supervision or action in the department? Do Congress and the President act directly through these departments or merely oversee them? Example, Presidents Constitutional obligation of being commander in chief giving the orders, etc. As for the heads of the offices, President can request a written document/opinion from them but the duty remains in the office

What is an agency?

Not uniquely independent commissions like the FCC, SEC or NRC; any unit of govt performing regulatory functions is an agency. There are very few differences amongst them in terms of the laws that govern their conduct. Only different from commissions: staggered appointments, fixed time of tenure, and dismissal for good cause. Procedures of administrative law (admin law) apply without discrimination across agencies (ex., NRC, NTA)

Course Information: Admin law not really about adjudication. Course will include various text statutes and regulations and their interpretations. Only Congress can enact statutes but agencies get to adopt regulations. If their regulations are valid and enacted, they have precisely the same force and effect of a statute, but not so for guidance documents. These texts form a pyramidal structure common to legal systems: one Constitution, hundreds of statutes, thousands of regulations, tens of thousands of interpretations and guiding documents. Course will deal with NHTSA (you should familiarize yourselves with on the guidance it might have given, initiatives on its agenda, etc. issue discussed will deal with airbags. Note that it took 20 years from its appearance to finally being required (there was a short-lived alternative to airbags which was an automatic seatbelt). Example: Statute from NY Health and Mental Hygiene to amend sanitary procedures providing notice about state of play of restaurants health inspection grade (A, B, Grade Pending); guideline of scoring and a process for contesting the grade given. Website provides details of the sanitary violations: The website provides information to the public that was previously unavailable - one way the Internet is transforming the function of the regulatory state. Interpretive Exercise: Driving While Intoxicated

Problem 1: Riding a mule. Does riding a mule while drunk really increase the "levels of danger to the well-being of society"? Mules are stubborn - a drunk person might be safer on a mule than off of it. Extra-textual sources: the prosecution wanted to rely solely on the text, and the defense wanted to apply a plain sense interpretation, by which a mule on a highway is absurd, and hence being drunk on a mule is not subject to this statute. The statute also provides no clear guidance on the level of intoxication that is required. Problem 2: Drunk on a Bicycle. Literal translation on a public highway (a highway system), under section 1 of statute, it would be a DUI it is any public road that a person can transport themselves through. Motor vehicle is more expansive term than usually understood, it incorporates a device a person or property can be transported through. This could become so broad that it leads to nonsensical outcomes: a baby-bjorn. Likewise with the words "motor," "vehicle," "device," "transported" - is the novel Cutting for Stone a "device" by which a person may be "transported"? Given that the word "any" is there, how do we fashion a workable statute from it? How do we find meeting? Problem 3: Electric wheelchair. Aside from the definition of "highway" and "vehicle," the man had no alternative to using the device. Would any disabled veteran be able to consume alcohol without being subject to this statute? Do the sidewalks count as a highway? Is he not fine only because he had to cross a sidewalk? The chair may or may not be able to be operated on a highway - but if it is, it cannot be operated while intoxicated in any "public place." But what about minimum road speeds, and the difference between tractors and wheel chairs - is there an interpretation of this statute that excludes wheel chairs but includes tractors? Common challenges and issues: Issues 1: motor vehicle definition is it limited to a motorized device? Dealing with the language itself is difficult (operate, transport, device) - what is the scope? Looking at the statutory intent provides some guidance but does it support/exclude mules, bicycles, or wheelchairs (electric) as motor vehicles? Issue 2: Definition of a public highway: is a sidewalk considered a highway? How about the definition of intoxication? Issue 3: Regarding a wheelchair as a motor vehicle: question is whether a speed limit would help provide clarity. However, you run into the problem that for anything with a speed limit below 5mph, it would not be a motor vehicle. Takeaways: Statutory interpretation must be consistently and reasonable (ex. cant say that it covers tractors but not wheelchair For all the statutory interpretation across agencies, a change in interpretive method requires justification

1/23/12 Difference between undersecretary and assistant secretary o Under is higher than assistant, usually step above o Likely that assistant has responsibilities for particular elements of a departments work o Undersecretary is deputy As far as Constitution is concerned, govt = Congress, President, and courts Agencies have direct relation to Congress, President, and Courts Invariably, agencies are creatures of statute o Whats the authority is answered by statute Chart on pg. 3 is misleading in a few ways o Wont usually encounter Amtrak or Tennessee Valley Administration or U.S. Postal Service as agency Usually considered government corporation, not subject to APA Are subject to regulation by other govt bodies o Treatment of Cabinet departments as singulars when, in fact, HHS (for example) has many sub-agencies with similar organizational charts themselves E.g. HHS CDC NIOSH Why would Congress set things up so that with HHS there is CDC, which has NIOSH within it? o Because more specific problems need to be addressed more specifically o And to insulate more expertise-based decisions from politics o For example, look at head of NIOSH JD, MD, MPH, LLM, served under Bush and reappointed under Obama Seems like it isnt a politically hot office then Getting people who are actually experts Looks like politics is less steady part of diet at this level o Does President have right to request opinion from heads of such sub-agencies? If question of whether OSHA did something wrong, not decided in Department of Labor, its given to OSHRC Why would Congress create insulated decision-maker and isolated adjudicator? o Similar checks and balances to other governing organizations Conventionally, that kind of separation is done within the agency itself DOL has its own set of adjudicatory bodies, review boards, and administrative law judges, set off from everyone else (really dont participate in office politics) o Secretary has the ability to overrule, but that isnt done often So why not do the same thing for OSHA? o Especially susceptible to policy changes due to shifts in administration between parties President policy will shift quickly but independent commissions will shift less radically

A lot of what is done structurally isnt actually rationally thought out o We have commodities/futures trading commission and an SEC With emergence of derivatives and stock exchange futures, commodities focus of CFTC started evaporating, so wouldnt it make sense for these new instruments to be included in a single, financial regulatory agency? So why havent the two been joined? o Head of Agriculture Committee wont give up its power, nor will head of Finance Committee Strange omission from casebooks recap of Art. II, leaves out the Presidents duty to take care that the laws be faithfully executed, which is actually an important part of the debate Numerous reasons given in textbook of why jobs might be given to agencies (p. 9-10) o Expertise o Fairness and rationality o Interest representation o Political accountability o Efficacy o Flexibility o Coordination o Efficiency In Myers, provision held unconstitutional was inability to dismiss postmaster without Senatorial assent Humphreys Executor is written as if FTC has nothing to do with executive branch Different in that statute said can only remove FTC head for cause. Thus no more authority for Congress, just restricts President to be apolitical in staffing decisions. This distinction widely recognized. o FTC, like all independent commissions, engages in all 3 roles of government o FTC, NRC, etc all part of executive branch Cant be in legislative branch, and cant be in judicial branch since they do more than adjudicate If President asked independent commission for opinion and they refused, that would probably be cause for firing o However, they can consult with President and not do what he say Despite that today would be in Executive, restrictions on firing are upheld. o Recent Peek-a-boo case said two levels not OK. o Unclear as matter of statutory wording whether FCC and SEC commissioners can only be removed for cause. Nuclear power plant spreads radioactive cesium to Imperial Valley, and important agricultural area. Need to set safety levels, crop fixing, and whether crops exceed safe levels o What should be delegated to Congress, courts, Department of Agriculture, EPA, NRC, National Center for Environmental Health, or California Should there be an interagency task force? o Where would an ad-hoc Presidential taskforce get its authority?

o Why should Farmer Jones listen? o Maybe have NRC be actual rule-maker, but with guidance from other agencies Is there a distinction between executive and independent agencies? o If this is an election year in a swing state, maybe better to give power to independent agencies Often dont trust states to look at things objectively rather than interests of their industries o Is political pressure really a legitimate concern in this issue? o Would heads really roll if political pressure were exerted by President? Differences not really all that great o One area of larger differences, particularly in past few years, is extent of political infiltration of agency staff Since Carter administration, Senior Executive Service for mid-level managers, more White House control of rewards/punishments less protected by civil service protection SES produces demands for White House clearance and results in political hacks at mid-level who stay because they have some civil service protections Is the SES a problem? David Barron wrote about this in 2007 GWU Law Review How should nominee respond to question to commit to act on ozone if White House doesnt really want to act? o If says will work with Senate, then doesnt, what kind of hold does Senate have on the position? Funding, oversight Senate could pass creation of a new agency, which President could veto o If public commitment to ozone regulation, less likely for President to move against it Presidents battle difficulty with getting nominees heard by creating czars which lack formal authority but have persuasive authority Think about Presidents authority to make recess appointments o Recent NLRB appointments

Class Notes (2012.01.25) Distinction between what a text could mean and what a text does mean o First, identify all of the possible readings of the text and the implications of each of those readings Plain meaning of the text Possible meanings of each of the terms Avoid redundancy and conflict between terms o Next, determine which of those readings is the correct reading of the text Legislative intent/history Real impact of the interpretation of the legislation History and custom of the government processes Interpretations that do not create unworkable or ridiculous outcomes Evans v. Stephens 387 F.3d 1220 o The Recess may refer to inter-session and intra-session recesses o Reasons: Historical practice of prior Presidents Duty of the President to ensure the proper functioning of the government MacPherson v. Buick Motor Co. 111 N.E. 1050 o Preliminary thoughts: There is a dispute of what the true facts behind the case It seems extremely likely that the car was traveling at 30mph and lost control after hitting some gravel However, the jury of local citizens believed that the car was going 8mph Another question was whether the rear wheel broke down because it was flawed? The car had been traveling for a year and a half carrying gravestones o Precedent cases: Thomas v. Winchester: A poison which is mislabeled is sure to cause harm and thus the party that mislabels the poison is liable to the end users of that good Loop v. Litchfield: The danger must be imminent, and since the wheel lasted 5 years before breaking the danger was not deemed imminent in this case Losee v. Clute: The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser Devlin v. Smith: A scaffold, improperly made, is a dangerous object and thus the manufacturer of a scaffold owes the users a duty, irrespective of his contract with their master, to build it with care Statler v. Ray Mfg. Co.: A coffee urn is of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed o Reasoning: The change in manufacturing practices and change in marketing practices brought about common law shifts to accommodate the new risks being introduced into the system Rotche v. Buick Motor Co. 193 N.E. 529 o Differences from MacPherson There was documented inspection of the vehicle by the manufacturer and subsequent intermediary distributors What are the pros and cons of using the common law as a form of regulation? o Pros: It addresses actual harms instead of hypothetical ones If one is worried about powerful lobbyists distorting democratic processes, judges may be shielded from lobbying more than the legislature or agencies o Cons: You have to wait for someone to be hurt before you can make a decision through the courts

Decisions are being made by judges and since they are older their normative preferences may be behind modern day preferences Judges and juries are not experts and do not have time to acquire specialization The ability of the court to gather information is limited by the rules of evidence; legislatures and agencies will not be thus burdened Tort law is relegated to one jurisdiction whereas a national agency can establish nationwide policies Coordination for corporations between jurisdictions Uncertainties of the scope of the holdings of the case The direct impact of common law only apply to a certain defendant instead of to the industry as a whole Judges may express idiosyncratic positions or opinions The courts have no enforcement and policing mechanism as an agency would The court is always deciding on the immediate facts before it instead of a broad knowledge of the general affairs of the world; the availability heuristic

Notes: Monday, January 30, 2012 RISK HEURISTIC

Marriage and Divorce almost all the class planned on marrying, only two people thought they would be divorced statistically, half the class will be divorced, example of risk heuristic in which people perceive themselves to be above average


MacPherson made industry safer in two senses: Early precursor of design defect; new form of negligent conduct design defect was the failure to design manufacturing and inspection processes in such a way as to catch defects Liability for failure to inspect (note Roche); actually the least justified aspect of MacPherson the cases Cardozo cites are actually cases where the court finds no duty to inspect following MacPherson, Buicks inspection process dramatically improved, as seen in Rotche Tort liability for design defect actually incentivize production of safer cars? If no, why? Maintains standard of safety better than market would, since market doesnt always produce safer options that consumers can then choose; tort liability at least sets a standard, although it may not raise the bar Similar problems where companies dont advertise safety feature, or where consumers arent qualified to decide among different safety features (i.e. Airbags 101); especially difficult in internet age where there is a lot of information to digest; regulation has increased the availability of information, but what are consumers supposed to do with it? For example, people buy SUVs and light trucks despite oil dependence; consumers arent making decisions based on fuel efficiency standards. People might also base decisions on availability heuristics and not on a careful weighing of all the information at hand. Moreover, demand may be for a particular kind of information (i.e. safety ratings, fuel efficiency), but the important information may be something entirely different; agencies have to know what kind of information to ask for. Limited by the facts of the case at bar; judges cant make holistic decisions judges may also lack institutional expertise to make well-educated decisions On the other hand, will market produce adequate incentives?


Questions about the Breyer reading: Rents: why do consumers want to regulate them? Calls for ending subsidies to the oil industry; increased taxes on millionaires General redistributive motive; more social than economic Non-rent example: installation of urban landlines is cheaper than rural ones; statute required rural installation to be subsidized by urban areas; rural communities would otherwise find it difficult to build If monopoly werent regulated, what kind of inefficiencies might that produce? Consumers might choose aluminum products over steel ones, even though steel is a more efficient allocation of resources, if steel prices werent regulated.

The market might develop more overnight shipping options if telephone industry werent
properly regulated, even though communication via telephone is more efficient than overnight shipping. People might use more outhouses and rudimentary waste management if sewage treatment services werent subsidized. Do consumer decisions actually affect companies decisions? Irrational companies may ignore, but in doing so they will be less competitive and eventually go out of business. regulation also helps prevent both manufacturers and consumers from imposing externalities upon society example is that purchasing an SUV adds to the risk of any one who crashes/is crashed into by SUV, and reduces the available parking spaces


JQ Wilson (?) grid: outputs of the political system Concentrated benefits Dispersed benefits National Traffic and Motor Vehicle Safety Act? (how can we explain its passage?) Endangered Species Act? (again, how can we explain?)

Concentrated costs

National Labor Relations Act? (passed, but lasting controversy)

Dispersed costs

General Mining Law of 1874? (irrational way of handling diminishing resources; yet no one has successfully replaced with general leasing law)

Re National Traffic and Motor Vehicle Safety Act: maybe voters are altruistic, guilty, or rational enough to willingly accept concentrated costs in return for dispersed benefits (i.e. Warren Buffet and income tax policy); in a way, we are both socially rational and individually rational (i.e. soldiers) General mining law authorizes companies to enter public lands and claim mineral deposits found there how does legislation which involves concentrated costs and dispersed benefits, or dispersed costs and dispersed benefits pass? Best explained by sunstein's rationale for altruistic voting behavior Sunstein After the Rights Revolution difference between selfish economic behavior and altruistic voting behavior difference between altruism and avoidance of a free rider problem? Altruistic voting behavior may be better described as desire to impose similar costs on everyone to achieve a desired dispersed benefit what is altruism? Debate over whether or not Warren Buffett's desire to raise taxes on himself is altruistic? Supporting political regulation that isn't reflected by market preferences may be rational out of a desire to avoid transaction costs of research in the marketplace, whereas general desires may be politically cheaper to support



School bus safety amendment passed after auto safety bill; Congress required substantial increase in safety appliance equipment for school buses (i.e. crash resistance, seat belts); 20% increase in cost; in the same breath, congress delayed implementation of airbags; what distortions might have been present in Congresss decision? Costs were hidden for school bus improvements, not directly charged to consumers but paid for by school boards Availability heuristic school bus accidents get a lot of publicity, but accident rate for school buses is much lower than that for other automobiles Irrational that Congress continued to spend so much on school bus safety for such little social benefit while automobile safety standards lingered; does not meet any sort of cost-benefit analysis parents cannot control driving of school bus, compared to driving personal cars Unintended consequence school boards may choose not to replace older models with new, safer models


Library of Congress describes house and senate processes in greater detail than casebook Stages of a bills consideration; what vetogates exist at each stage? Preliminary: bills can be killed by leadership before committee Committee stage: drafting, intro, committee assignments, report, debate, chairmans discretion most bills fail in committee, can be killed by either the committee or the committee chair Floor: schedule for debate, debate itself, filibuster, amendment, motion to recommit, final vote Conference committee: failed conference, same hurdles upon return to the houses President: veto, houses may not override


Legislative Game Theory: Status Quo House Comm. Chair H. Median Senate Median S. Comm. Chair Pres. Conservative ---------------------------------------------------------------------------------- Liberal What is the easiest statute to pass that the President would prefer? Assume everyone would prefer something to the right of the status quo. Easiest bill to pass is the most liberal bill allowed by the most conservative member of the House committee, with Democratic control of House and Senate


Hypothetical legislation: Congress wants legislation under which no economically significant regulation may take effect unless affirmatively approved by Congress via joint congressional resolution of approval. Should president sign or veto this bill?


Con: might create Congressional gridlock; will definitely increase its workload, which is especially untimely, considering Congresss recent inefficiencies Con: might slow down agency operations; many regulations would have to obtain congressional approval prior to taking effect; this could have all kinds of negative repercussions Con: it would intrude upon the separation of powers; executive is supposed to see that all laws are faithfully executed; Congress would take power out of the Presidents hands Con: Congress doesnt have agencies expertise; Some decisions are best made by experts rather than democratic processes Con: agencies are isolated from political pressures for a reason (i.e. Center for Disease Control is supposed to be insulated from both Presidential and Congressional fluctuations) Pro: helps introduce more political judgment; more democratic treatment of agencies prerogatives Pro: no constitutional objections to the legislation; Congress granted authority for agency powers in the first place Pro: might help eliminate some of the vetogates; Joint resolution isnt treated like normal legislation; it goes straight to the floors of both houses. This hypothetical is taken from a real world example; see REINS. What implication would this have for judicial review of regulations? Would they be treated with greater deference, as statutes are? Can the statute direct courts to treat approved regulations like statutes?


Story of the legislation Passage of the legislation is very unlikely, because it had diffuse benefits and concentrated costs (See 1-31 notes). Social choice theory would not have predicted its passage. Why did it pass? Individual Actors Ralph Nader brought public attention to issue with his book Unsafe at Any Speed Senator Ribicoff Secretary (later Senator) Moynahan General Motors Activity 3. GM made a design mistake on the Corvair, which was the subject of Nader's book GM paid too much attention to Nader, which drew attention to the issue Underlying Factors Ideology of 1960s was that legislation could solve all social ills. Lack of lobbying on part of automakers, because they never had to in the past Growth of statistics and their application to public safety Benefits of bill were dispersed, but still fairly substantial for each person Availability heuristic. Because cars being dangerous was in the news, people thought the benefit of the bill would be greater Attention to safety in the context of the interstate highway system, which was built at that time

Google: Driverless cars clip of guy behind Google driverless car. Starts discussion of this by pointing out that his best friend died in a car accident. Weak automobile lobby is part of the story. Why might the automakers welcome this development? Coordinating exercise Manufacturers do not want to install unnecessary safety features unless everyone else is installing, because it makes the cars more expensive. Antitrust law prohibits car companies from coordinating on their own. Particularly in the advertising era. Can pass excess costs of safety equipment to consumers, because every car company's price is going to rise except for losses from reduced general demand (fewer cars bought because of increased price) Perception that cars are dangerous will increase consumer demand to buy new cars. Blocking legislation in Congress will create bad PR, and the problem will still exist. More evidence of negligence is available, and this will lead to tort lawsuits. European cars already trumpeting safety advantages, and American cars need to compete. Civil liability still exists. Car companies are outsourcing research projects to the government.

#7 raises interpretation question: Can secretary demand that car companies create a capacity if he says he knows that the car company can create the safety feature? Statute discusses practicable design. Would that count as practicable? Unclear from the statute. Yes, but there must be substantial research to inform his decision. Interpretive Question 108(c) Continuation of common law liability: Compliance with any Federal motor vehicle safety standard issued under this title does not exempt any person from liability under common law. Does compliance with federal safety standards fail to exempt a manufacturer from responsibility from only performance defects, or also design defects?


Argument for design defect liability Language is extremely broad any liability under common law, must include design defect liability, which was known at the time. Arg against design defect Design defect was not a significant part of tort system at the time. Section 103(d) States are preempted. Cannot adopt standards for design of automobiles that differs in any degree from federal standard. Why should the judge and jury be able to impact design standards through tort law, but not the politically elected parts of the state? Is there a rational reason? Uniformity a possible response. Promote uniformity of interpretation of standards. But In McPherson, jury ignored Buick's practices and found in favor of the local citizen. Political standards are prospective give car companies time to adopt. But a jury finds a design defect, car could have been built 5 years ago, and jury could base ruling on fact that safety standards got better in the intervening 5 years. Why expose car companies to retrospectively liability at hands of judges and juries? 108(c) Continuation of Common law liability- If Congress did not consider design defect part of common law, then continuation would not include design defect. It's also possible that 108 simply allows for a private right of action under the statute. Case: Gyer v. American Honda Issue was airbags specifically. By time of accident, airbags had become a statutory requirement. At time car was made, airbags were not a statutory or regulatory requirement. Argument was that airbags were known, shouldn't Honda have designed a well-made car. Court found there to be no liability for design defect. Committee Report Does this help us to understand the statute? The intent of the drafter, what the Senators were thinking when they voted in favor it. Staff writes it, not voted on in Committee. Staff reads it, Senator may only ask for a briefing. Risk in relying on it is that the Senators did not individually intend it Secretary of Commerce will also read it Responding to the question above - Committee Report suggests that design decisions should be left to manufacturers. . What is in the committee report that is not in the bill? Definition of defect (pg 127) Includes design in the history, but not in the legislation Parts of the report say The committee expects that - this is not necessarily part of the statute But Secretary will carefully consider Committee's expectations, because the Commerce Committee is the oversight committee To what extent should the Secretary be considering costs? (pg 126) General Counsel of Commerce Department states that reasonableness of cost, feasibility, and adequate lead time should be considered in legislation Committee Report says safety shall be the overriding concern How should these two be reconciled? Safety as overriding concern and cost/feasibility/lead time could be meaningless double talk. But more likely suggests that some type of balancing is necessary. Safety gets more weight on the balance than other factors. There is no clear standard. Reasonableness grants the Secretary a lot of discretion. Perhaps the point is to preserve the market, but beyond that safety is the overriding concern. Need regulations to survive judicial review provided for in the statute. Quantifying cost and expected lives saved will help for this.


The Statute Framework for the statute: Which parts reflect its: 1. Purpose preamble. Does the preamble have the operative effect of law? Declaratory function, but not enacted. But, If statute is declared unconstitutional, then preamble helps court understand why Congress enacted it into law.


Definitions Section 102. Definitions functions to clarify what the terms of the statute mean. Definitions have the force of law. Ex: Motor Vehicle Standard must have objective criteria. 102(2) Can reasonableness be included in a safety standard? Can't tell manufacturers exactly what they must do, but you need to tell them concretely enough so they know how to design the car. Manufacturers need to have certainty. 6 Circuit Case - After department first required passive restraint standards. Standard was what they should be, and specified how manufacturer could show how it met the standard (by using a dummy). Court found that the neck of the dummy does not have same flexibility, so it is not an objective criteria, and the regulation could not be given force of law.


Transitive Requirements When Congress puts an obligation on a non-governmental actor to do something. 112(c) Manufacturers required to establish and maintain records. 113 manufacturer requirements - mandatory recalls 108 No person shall


Intransitive Elements When Congress creates another body to say what has to be done. Obligations imposed on government actors. Any provision that says gives Secretary responsibility is intransitive: 103(a) Secretary creates Motor Vehicle Safety Standards 103(e) Secretary has power to amend or revoke motor vehicle safety standards. A large part of the statute authorizes someone else to take an action. Argument Congress is absconding from its legislative duty. It is not creating legislation, but instead authorizing someone else to legislate.


Principal operative provisions What is the act principally about? Section 103 Establishes Motor Vehicle Safety Standards. Section 108 - No person shall - Creates illegal activity.


Subsidiary operative provisions Examples: Sections 104 (advisory council) Inspection provisions Reports to Congress


Implementation provisions Examples: District court jurisdiction Judicial Review


103(e) Timeline 105,106, 107, 109, 110 research, testing, coordination, penalties, jurisdiction

8. Effect on other federal law (repeal, amendment) 9. Effect on state law (authorization, preemption, savings clause) 10. Effective date Statute Section 122 Regulations Section 103(c), 103(h) Give 180 days to 1 year Why such a long time for regulations to take effect? To give car companies a chance to change design and manufacturing practices.There is a public process for adoption of regulations. Car companies will have knowledge of which regulations are going to be placed into effect. Is that wasteful then? Good cause - if Car manufacturers want more than a year, they need to have a good reason In airbags regulation Secretary consistently made airbag regulation fairly far off, put it into administration of the next president. Political motivation. Other features of the statute: Strange that tires are legislated separately. But tires/cars really were separate industries, and probably should have been regulated differently. This agency was only under control of Commerce for a short period of time. Department of Transportation was formed in 1967, and implementation of this bill moved to there. Manufacturers got a significant presence on the Advisory Council. Trucks and buses are missing specific regulation, although they fit under strict definition of motor vehicles. Vehicle is never defined. Interpretation question: what about electric bikes? 102(2) Definition of motor vehicle. But vehicle is never defined. Motorcycles are included in the legislative history. Requirement of standards for used cars within a year of the standards for new cars. But there do not seem to be any current standards for used cars. Unclear why the National Registry Title was added to the end of this statute.


Questions about the delegation readings: Its an inevitable issue that questions arise with respect to what powers Congress can delegate. - Nondelegation doctrine: theres a Constitutional argument against delegating power, which has been enforced twice by Supreme Court. o The better way to put it is that the Court has said only twice, as a matter of Constitutional authority, that Congress has delegated with insufficient authority. Are there other ways the Court can exercise authority w/out striking a statute as unconstitutional? The intelligible principle If an intelligible principle is found, there is no problem regarding insufficient authority stemming from Congressional delegation. What would it mean to say that Congress has never delegated (as the Rubin article stated)? It would mean that Congress has not delegated legislative authority. How would the existence of the intelligible standard principle lead you to behave if your statute or administrative agency is challenged? Try to fit your work under the principle. Bressman: the intelligible principle encourages agencies to relate to the law. The nondelegation doctrine serves as a deterrent against delegating too much power. Agencies selfimpose restraints on their own discretion in exchange for broad grants or regulatory authority. If the judicial branch cannot assess the legality of an agency action, then the statute authorizing agency action is unconstitutional. What can a court do short of saying that its an unconstitutional delegation? Read the statute narrowly. If the court says that it cant be sure that, based on certain problematic issues, Congress intended to do X, it will apply a narrower reading that comports more with the Constitution. Justice Scalia sees no way to sharpen the intelligible standard to bring it to the level of being judicially appropriate. If there were a delegation problem with what Congress has done, thats not something the executive can correct. The law from Congress is the law. Agency self-regulation cannot affect Courts judgment.

One problem in the readings is: Academics prefer that agencies impose standards (broad set of requirements) rather than more specific rules (mandating exact specifications). Why do academics feel this way and what does it say about statutory interpretation? REINS Act: from a perspective wishing Congress to do as much as possible, does REINS cure or worsen Congressional action? -Worsen: Congress has no incentive to legislate. If it is necessarily empowering someone else to do the work, thats an incentive to more precise legislation. What about incentives encouraging Congress to do as much as it can at this moment? Congress delegates authority to make regulations to other parties over which it has limited control if it dislikes those regulations, so there is incentive to get it right the first time. Without oversight committees, it encourages Congress to get it right the first time.

Great cynicism in the readings about legislative/administrative processes. Pg 143: Incentives of elected officials are to assure reelection, award allies. Incentives of bureaucrats are to get more power. Very cynical view.


The shadow effect of the delegation doctrine is more powerful than the doctrine itself b/c it affects actions consistently by requiring justifications for administrative actions. Agencies do not contend that their actions are unreviewable.

Discussion about the drafting exercise: Whats the difference between the two types of statute (first, half of the class writing statutes about 1 in every 20 parking spots must have a charging spot. Second, half of the class writing about requirements for signage about availability of charging spots)? The first type of statute requires a much greater investment on the part of garage owners. If the investment is great in places where there are very few electric cars, the first type of statute could discourage good parking garages from entering business. What exactly is a charging station? Does requiring a sign for chargers have any effect on what it means to have a charger? If any electrical outlet can be a charger, that creates a problem. For the second statute, what is legislature trying to accomplish? Were they trying to get parking garage owners to invest in charging stations or just simply make information more readily available? What sort of market impact will this have on peoples choices about buying electric cars and where to park? What comes first the publicly available chargers or the people popularly investing in these cars? Much easier to have a local/state statute because of enforcement considerations. (Many students wrote federal statutes, which raises enforcement questions because of the difficulty of enforcing nationwide in places where the circumstances are varied.) It is important to note who should be in-charge and why. Lots of small issues arise in drafting, such as defining how visible the sign must be and there are complicated matters that arise with pricing structures (and are hard to express on a simple sign). What about safety precautions for kids? There could also be vandalism concerns. What about preventing electric chargers from getting in contact with liquids? Do open-air parking lots count as garages? [Looking at definitions on the projector] difficulties with definitional matters: -Electric motors arent only in electric cars theyre also in hybrids. And all cars have electrical components. If you refer specifically to vehicles which can/must be charged, this solves some of the ambiguity. Electric vehicle definitional issues can be solved by inserting a clause that stipulates that electric vehicle is based on whether the car needs charging in the first place. -Parking garage: Get in trouble by using a term like sole purpose because there are always other purposes. For example, if a parking garage is defined as a place whose sole purpose is parking, what about a parking garage that also washes cars? Or a parking garage with vending machines? Under those circumstances there are other purposes besides solely parking. So inserting solely would disqualify most garages from the definition. -What about free parking garages? Or residential parking garages? If you exclude free parking garages, many condos offer free parking which is actually wrapped up as part of a comprehensive fee. -How do you get specific enough so as to exclude trash-truck parking facilities? If you include free parking garages, that could accidentally include buildings that house fire trucks or other municipal vehicles. -When an open parking lot is exposed to the elements, does this raise safety concerns? -To what extent can discretion be delegated to an agency official to determine appropriate conditions? Is design of the charging device a proper concern? How account for technological progress? What about residential compared to commercial parking facilities? [Handing out statutes and discussion in groups of possible improvements]


Criticisms of Sign Statute: Should a parking garage include any open parking lot? This raises safety considerations and concerns about discouraging availability of parking. What language should the signs be in? If there is a necessity for another language (besides English), but the necessity is left at the discretion of the garage owner, does that have teeth? Do you need to adjust the sign if any charging station is (temporarily) out-of-order? What about penalties? If there is a cap on penalty, then what incentive is there to comply after the maximum penalty has been assessed? If the cost of complying would be greater than the cost of the max penalty, why comply at all? Criticisms of Number of charging stations act: When stipulating details about charging stations, how does that comport with delegating to the secretary? What powers get delegated to an agency and what gets explicitly stated in the statute? If its a federal statute, that could give rise to enforcement issues. Delegation of certain standards based on industry standards: that could be too indefinite or changing. The principle purpose language in the definition of the parking garage could be problematic.


Notes- Wed. Feb. 8 Tools of statutory analysis Text based tools Meaning plains ordinary and technical Linguistic cannons Whole act cannons Corpus juris canons Maxims (policy based canons) Lenity Avoidance Others Scriveners errors Intent and purpose-based tools Social context of legislation Legislative history and its critics Tools for changed circumstances Commons law statutes Intervening changes in industry, technology, law, etc. Exception: (some believe that statutes are static with one meaning at the time it was created that does not change) Theories of statutory interpretation Textualism Intentionalism Purposivism Statutory interpretation is a developing area of study. Different theories were realized and used at different times throughout history Purposivism- Heydons case common law before the act what was it trying to correct what remedy did they want in place, how best can it be effectuated Hart & Sacks, The Legal Process, 1116, 1124-25 (Eskridge & Frickey, eds. 1994) Every statute has a presumption of purpose Reasonable men pursuing reasonable purposes reasonably, unless the contrary is unmistakable *Example of unmistakable unreasonableness: Text of minimum sentencing for drugs Crack cocaine dealer sentences are out of proportion with all other dealer sentences The general words ought never to be read as directing an irrational pattern of particular applications Irrational patterns of particular applications ought always to be judged in the light of the overriding and organizing purpose *To be judged by courts in retrospect by best present understanding. *Prescription of how to deal with statutes, not a description of their unvarying essence *Statutes are presumed to be made for the public good, not cynically bargained deals for individual interests *This is a normative view that judges ought to give legislation the benefit of the doubt. It does not imply dynamic interpretation necessarily *Judges must be aware of the legislature and the purposes they attempt to pursue *Theoretically encourages judges to act outside their personal politics Miscellaneous Theories Imaginative Reconstruction - What to do if Congress had actually foreseen this issue?


New Textualism - nothing beyond the text Practical reasoning (pragmatism) Attitudinal and behavioral theories Dynamic interpretation- 1803 in the French civil code: the hope is that the principles embodies will be used by judges to serve the purpose of the statute Faithful servant by francis lieber- If a master orders fetch some soupmeat then the servant must interpret what to get. We must trust common sense and good faith. Attentiveness to how the authors might have intended their words. Not the servants dictionary, but the masters. Posner- By reading statues as always towards reasonable ends it increases the cost of the legislature simply making deals and thus decreases the likelihood of such deals. For example; fewer subsidies to moneyed interests that do not make sense to the nation as a whole. Examples of Interpretive Applications Church of the Holy Trinity v. U.S Cir. ct. held that contract for English preacher is prohibited by statute (Brewer) - Reverse, absurd to think that applied in this case Appellee argues b/c enumerated exceptions, evidence that all others meant to prohibited "Never suggested...that the market for the services of Christian ministers was depressed by foreign competition." "Brain toiler" does not originate from text of statute *P. 178 paragraph 1 - US v Palmer is source of quotation." Statute on point: An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the US, its Territories, and the District of Columbia 1 -Persons, companies, partnerships, and corporations can't pre-pay the transportation or in any way assist or encourage the importation of aliens or foreigners into the US to perform labor or service of any kind in the US etc. *Perhaps the church does not qualify as one of these entities *Is a rectorship "labor or service of any kind?" 4 - Criminal liability for a ship's master who knowingly brings within the US an alien laborer, mechanic, or artisan who had been contracted to perform labor or service in the US *One argument: presumption that non-steerage passengers are legitimate *Doesn't refer to a rector specifically 5 - The provisions do not apply to professional actors, artists, lecturers, or singers, nor to persons employed strictly as personal or domestic servants *How different is a rector from a lecturer and singer? *Does a rector serving in a "house of God" become a domestic servant? Possible Tools *Title of the Act *Doesn't contain the "service of any kind" provision of 1 *Social context: Importation of unskilled laborers depressing wages Value of religion to society *Text "Labor or service of any kind" is ignored *Legislative history Congress aware that could and would reach "brain toilers," so the failure to reasonably deal with them was a known deficiency in order to get some kind of statute in place to deal with exigencies of depressed wages Purposeful vagueness could be implicit delegation to courts Does this exploitation of moral hazard indicate that courts should reject a reasonable interpretation? Textualists point to Holy Trinity as an example of purposivists excess Nix v. Hedden: the court is trying to decide about what are fruits or vegetables. A list cannot possibly be exhaustive, and the typical definitions are somewhat vague. So tomatoes are debatable. The tariff taker treats them as taxed. There may be reason to allow the low level employee to regulate as is seen fit so long as it is consistent. Tends to conform to trade norms.


Muscarello v. US: what it means to use or carry a firearm. Activity: Would the following cases fall under the statute discussed in Muscarello? * Deer rifle in the trunk and a deer on the hood? *Drug dealer with a loaded gun in his apt. closet? *Bringing an unloaded but functional antique pistol as a trade for drugs? An ak47? *Keeping of a gun behind a counter of an oft-robbed barrio? when the pharmacist sells prescription drugs over the counter?


Nix & Muscarello redux: use of dictionaries in Supreme Court decisions has spiked in recent years, paralleling rise of New Textualism. Issues to Consider When Using Dictionaries: Todays dictionary/meaning or yesterdays? Is the issue how readers would understand a statutes words now, or how its enactors would have understood them when passing the text? Choice of theory is important here. How common a usage? The most common understanding of the word? Any available definition? The definition that best fits the textual context? The definition suggested by usage in government reports or debatesor in newspapers or the Bible (Muscarello)? Which/whose dictionaries should you use? They have reputations and areas of relatively greater/lesser expertise. Ordinary or technical meaning? In law, is Blacks privileged? In dealing with technical materials, how important is trade usage? The word alone, or as illuminated by the context of the text in which it is embedded? Breyers Is there any butter? Compare noscitur a sociis. Hart & Sacks The Legal Process: courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. No formulae, only personal interpretative predilections. Not necessarily the case, per Strauss. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon 515 U.S. 687 (1995) Challenge to regulation under Endangered Species Act of 1973. Secretary of Interior promulgates regulation that expanded the scope of takings to include significant habitat modification or degradation where it actually kills or injures wildlife. Oregon lumberjacks and associated interested parties file suit because the regulation would prohibit logging activity in certain virgin forests. The case turns on the definition of harm embedded in the 3, 16 U.S.C. 1532 (19) definition of take. 1532 (19) defines take as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt same. By 1975, Secretary of Interior had adopted 50 C.F.R. 17.3, which defines harm as an act which actually kills or injures wildlifeinclude*ing+ significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. So two years after passage and 20 years before instant proceedings, DOI understood harm under taking to include habitat destruction. In 1982, Congress amended ESA to authorize Secretary to make exceptions to taking prohibition if taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Does Congress hereby concede that DOI can in fact regulate indirect harms? It appears sowhy apply to the Secretary for an exception for activity you can lawfully carry out? Needless to say, this supports the Secretarys position. Dissent contends the expanded harm is repugnant to the ordinary and traditional sense; see Scalias example of an absurd chain of causation: tilling causing erosion causing silt runoff causing oxygen depletion causing impairment of fish-breedingis this unfortunate farmer taking those fish?


Textual Canons In Action. Words are to be given their ordinary meaning. (Caveats: As of when? Whose ordinary?) Stevens Babbitt Majority: harm ordinarily encompasses indirect harms Scalias Babbitt Dissent: take has two senses, and traditionally (at common law) means reduce to possession. Statutes definition of take isnt necessarily the take throughout the statute; look to context else produce strange result Noscitur a Sociis Scalia: the enumeration of terms under take all involve the direct application of force to greater or lesser degreedont tear the harm definition wide open. Ejusdem Generis Indiana Code 10-1401: Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy club, blackjack, or any other deadly or dangerous weapon while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life. Suppose robber injured victim (a) by kicking with steel-toed boots; (b) cutting him with broken bottle; (c) breaking his neck with a karate chop? (a) boot isnt typically a weaponit becomes one in the moment (b) bottle becomes a weapon upon breaking (c) is the hand, having been trained to lethality, a weapon? The Mann Act prohibits interstate transportation of any woman or girl for the purpose of prostitution, or debauchery, or for any other immoral purpose Suppose transportation of a woman (a) as a drug courier, i.e. swallowed drugs; (b) by a married man to commit adultery? (a) does this fall under debauchery, given the dictionary definition? Drugs are certainly sensuous and pleasurable. (b) SCOTUS has affirmed this interpretation in Caminetti v. U.S. (1917)but did lawmakers really intend to criminalize their cross-border dalliances? A fairly egregious application of the Plain Meaning Rule. Expressio Unius The False Claims Act prohibits submitting false or fraudulent claims for payment to the U.S. and authorizes qui tam suits (private parties file suits in governments name and share proceeds), but bars such suits that are based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or GAO report, hearing, audit, or investigation, or from the news media. Basically, qui tam provision encourages snitching and discourages filing suit on widely reported information. Does the language bar qui tam actions that are (a) based on information qui tam plaintiff obtained from a federal agency through FOIA request; (b) based on allegations discussed in the report of a state administrative investigation the news media didnt report? (a) These documents werent publicly available, and the purpose of the actincentivizing individual investigative initiativeis advanced; but would approving FOIA qui tam also encourage wasteful FOIA fishing expeditions? Hinges on words report and investigation, and whether they apply to the sleuths or the governments. SCOTUS said no in 2011 case involving witness to conduct who subsequently obtained documents, citing concern of overzealous info-seekers. (b) Expresio Unius: statute seems to be confined to federal government (congressional or GAO reports); Punctuation, while not controlling, may be used as an aid Referential and qualifying words ordinarily refer only to the last antecedent Under MA law, a liquor license is limited: No sale of spirituous or imtoxicating liquor shall be made between the hours of twelve at night and six in the morning, nor during the Lords day, except that if the licensee is also


licensed as an innholder, he may supply such liquor to guests who have resorted to his house for food or lodgings. May the Red Lion Inn keep its bar open for guests until 2am? Friday night? Saturday night? Last antecedent rule would hold exception only to apply to nor during the Lords day. He can only sell on Sunday starting at 6am and ending at midnight. And signifies conjunction; or, disjunction. A LA statute provides: No personal shall engage in or institute a local telephone call, conversation or conference of an anonymous nature and therein use obscene, profane, vulgar, lewd, lascivious or indecent language, suggestions or proposals of an obscene nature and threats of any kind whatsoever. (a) Are only telephonic communications covered? (b) Is a threat a necessary element of a violation? (c) Is it a sufficient element of a violation? (a) telephone call, conversation or conference: can a private huddle with masks qualify? (b) It appears sodepends how much is included on the left side of the and. (c) Ditto. Textbook, p. 226; a helpful series of textual canon questions. (1) Occupancy tax for hotels, motels, tourist homes, other physical places of lodging businessare online travel companies covered? (2) Restitution required of felons of their victims includes for lost income, necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings. Are attorneys fees included? Ejusdem generis suggests not: theyre ancillary/incidental/facilitation expenses; attorneys fees are expenses of direct participation. (3) Katrina questionLA state statute allows exclusion of coverage for floods, among other waterrelated calamities. Insurance policyholders argue flood refers to natural disasters, not the collapse of levees; companies would to argue from noscitur a sociis that the definition mentions nothing of artificial occurrences. May ordinarily signifies discretion; shall, command Words of number and gender ordinarily are not limiting (The Golden Rule) Any of these rules may be varied to avoid absurdity


Whole Act canons -Any statute is to be interpreted as a whole, not simply in relation to particular words/provisions -Titles may be used to resolve ambiguity -Preambles may be useful, but do not control -Provisos create exceptions -Every word/phrase has a function; none should be interpreted so as to be/make any other part of the act redundant. -Where a word/phrase is repeated in an act, it usually has the same meaning in each use. -Parts of an act should not be interpreted to conflict with or derogate from one another -An agency may have a particularly persuasive view of an Act, given its continuing responsibilities for it. *As with linguistic canons, these are useful but hardly invariable Did any of these show up in Babbitt v. Sweet Home? How did they inform the opinions? --Take as used in the beginning is defined as used elsewhere in the statute. --You wouldnt need harm to cover direct injury if its covered elsewhere, so it probably means direct harm. --Majority argued that the word title should be used consistently throughout the whole Act. --Dissent argued that habitat modification would not have been included as a separate provision if it was to be implied from the earlier use. Also cites section allowing for the forfeiture of items. If habitat modification meant taking that section would have included shovels and bulldozers. Response? Its only important to confiscate items that are being directly used for harm in order to stop the behavior/activity. Does the word have to embrace the whole series every time it is used? Is this what Scalia means? --The amendment covering indirect harms must have confirmed that the statute was directed at indirect harms. --Scalias argument: since taking is used this way here, it must mean this throughout the statute. Fond of seeing how words function in the whole code. --P. 204- if harm means the same thing as all the words around it, it would be surplusage, so it must mean indirect. --You can still mean taking to have the full definition, but the inclusive definition does not necessarily have to apply in every situation/usage of the word. There are frequent examples of deviations from the whole act canons: U.S. Constitution, Amendment V: nor shall any personbe compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law Corporations DO NOT have privileges in self-incrimination. So if corporations are people, why dont they have all the same privileges as people under the Fifth Amendment? Administrative Procedure Act 5 U.S.C. 701(a): This chapter applies, according to the provisions thereof, except to the extent that (2) agency action is committed to agency discretion by law. 706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law The reviewing court shall-- (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; Courts can never examine discretionary acts. EXCEPT here. But there are no standards by which to review. Many other agencies have discretion, but it is legally constrained. Here, it is DISCRETION, and not discretion. Corpus Juris and Code Canons -Legislature use words/phrases consistently between acts (in pari materia) -if the same general subject matter -if contemporaneously enacted


-if frequently employed -An actual, well-constructed code is integrated -redundancy is avoided -intention is to construct/instruct the whole policy spaceissues are not omitted -organization is logical and may require cross-referencing (general/special parts) -Repeals by implication are disfavored -Subsequent enactments may carry implications for the meaning of existing laws In pari materia: Stewart Court looked at statutes involving capital gains and farm loans and treated them in pari materia. Erlenbaugh v. United States Looking at two statutes side by side. One has an exception for newspapers, the other does not. Publishers are charged under one. Claim that both statutes must be read in pari materia so they get the advantage of 1953(b) under their indictment under 1952(a). Why does that court not buy this argument? 1953 can be read as having a narrower, specific function rather than applying to a broad spectrum of illegal activity. What if there was not a definition of unlawful activity in 1952 that included gambling? Would there be an in pari materia argument still that 1952 couldnt apply to gambling at all? The title helps: in aid of racketeering enterprises. Congress specifically addressed the problem of gambling in 1953 so we shouldnt think they also addressed it in 1952. It would create surplusage. Which statute has the heavier penalty? Probably 1953. West Virginia University Hospitals, Inc. v. Casey Expert witness fees. Look at all the statutes where Congress has said expert witness fees, and where theyve only said attorneys fees. Let Congress be specific, they know what they want. Thats the argument of the court. Are there counterarguments? In pari materia gets weaker the more time that has passed. Could be argued that after enough time the phrase/concept is understood differently. In this instance, however, the two statutes are contemporaneous. How about looking to the legislative history of the statute to say that Congress didnt intend for this to be a specific usage? BUT, note that statutes are written in committee, not by an individual. What if you found that committees developed their own patterns of usage? It is relevant to note that the statutes Scalia references deal with very different types of expert witness? Has there been a reference in recent cases that interpreted attorneys fees to be included? It is difficult to argue with Scalias textualist arguments, but what if we look to purpose? If another CRA includes explicit provision, then the absence of it suggests that it should be included. What if the drafters never thought these terms would even be relevant or argued about? If youre part of Congress, isnt the consistent use of language kind of low on the totem pole of priorities? Scalia discusses common law uses of terms, but its possible that drafters have no idea what the common law terminology implies. Substantive Canons Here, politics really does play a role -Rule of lenity in criminal cases -association with the principle of legality -Interpretation to avoid constitutional problems -clear statement rules -other congressional responsibility considerations (breadth of delegations) -special issues where the problem suggest a distinction not made in the statute


-where the constitutional issue was sharpened only after statutory adoption -Interpretation to avoid impositions on federalist values -clear statement as a means of enforcing political controls on federalism? -Presumption that statutes are only prospective -Presumption against implied repeal United States v. Santos Statutes: 18 U.S.C. 1956 Laundering of monetary instruments which involves the proceeds of specified unlawful activity -Issue: what does proceeds means here? Does it mean receipts or profits? -Scalias process- ordinary meaning, dictionaries, no dispositive answer. Turns to whole code canon, and that there is no federal common meaning within the criminal code. Whole Act canon- no ambiguity resolved. Decides that rule of lenity should be applied, because there is unsolvable ambiguity. What kind of purpose does he attribute to the statute? -Alito: Interpretation as profits would prevent the growth of an illegitimate business. Receipts would control the spread or any other use of illegitimately procured funds. If it means profits, then it doesnt target companies in the red. Relies a lot on states and the Model Act where the issue is clear. The pluralitys narrow construction would make proof difficult. **Congress agreed with Alito, and codified his interpretation in 18 U.S.C. 1956(c)(9). -Are the two opinions talking past each other? One says we dont play mind readers, the other says they try and interpret mindsets/interpretations. But Scalia also has consequentialist arguments here. Not just textualist arguments. He doesnt know how to choose between the two purposes, and therefore uses the rule of lenity. Where is the burden of producing change likely to be lightest? In the criminal law context, its likely to be lightest with the state. Strange bedfellows in this opinion? -Constitutional avoidance canon: Zadvydas v. Davis and Almendarez-Torres v. United States Both of these opinions are written by Breyer, how do you reconcile them? -Zadvydas: 8 U.S.C. 1231 Court was trying to avoid declaring the law unconstitutional. Where did the implicit meaning come from? Six months is the maximum period of time you can be imprisoned without a jury trial, so the Court uses it as a marker. You cant avoid constitutional questions by CREATING something in a text that just isnt there. Almendarez: 18 U.S.C. 1326 Reentry of removed aliens -Is the constitutional question not as strong in this case? Here, it is- can a judge be a decider of facts on a preponderance of evidence versus reasonable doubt? This may be a very narrow and technical question in comparison with the previous case. The issue was whether the indictment had to charge the prior felonies, not whether he was entitled to a jury trial or proof beyond a reasonable doubt. -If you want a unified jurisprudence theory, you have to turn to the gravity of the constitutional question. -Subsequent history: Apprendi v. New Jersey held that one has a right to jury trial, and proof beyond a reasonable doubt, of any fact that increases the possible sentencing range beyond what a criminal statute ordinarily provides, other than the fact of a prior conviction. Thomas changed his vote and recanted his vote in Almendarez. Note: Breyer used to sit on the Sentencing Commission and therefore has strong opinions about the exercise of sentencing discretion or the fact that a statute that has penalties in its title.


Federalism/Structural Clear Statement Rules (4)(B)(c) To what extent is this rule, the necessity for Congress to be clear, a product of Congressional pressure/derivation? The vertical separation of powers serves to prevent tyranny. Amendment XIV - Restructured relationship between the federal government of the state. Amendment XVII - took senate away from the state legislatures, senators elected by the people thereof. Wechsler- The political safeguards of federalism Congress is made up of people with primary allegiance to states Does this rule reject the notion of political safeguards, or only enforce them? Comment- Rehnquist Court - felt need to clarify the relationship between the federal and state governments. A traditional view may not account for the political reality. (Dissent in Garcia, p. 266) Justice OConnor - notes that her jurisprudence was evolving. Was the only person on the Court at the time who has been a judge in a state court. Gregory v. Ashcroft - decided on same day as Chisom v. Roemer, which held that the Voting Rights Act applied to state judges Why not use Whites simpler argument (statutory out)? I.e. judges are officials on the policymaking level? Comment - This would require them to address a Constitutional question th Arising under the 14 Amendment Age discrimination = Equal Protection Violation??? Comment - This requires admitting that courts make policy, which is a limitation on checks and balances. Note - What is the source of the Clear Statement rule? The canon applied in OConnors ruling is a judicial creation. Are canons anything other than judge-made policy?

Eskridge and Frickey Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking That is, the Court . . . Has tended to create the strongest clear statement rules to combine Congresss power in areas in which Congress has the power to do virtually anything. What the Court is doing is creating a domain of quasi-constitutional law in which in certain areas: Judicial review does not prevent Congress from legislating, but judicial interpretation of the resulting legislation requires an extraordinarily specific statement on the face of the statute for Congress to limit the states or the executive department. E.g. There really isnt much doubt about Congress power to extend the ADEA to judges. Therefore, the fact that they didnt explicitly do so is significant. Comment - Dormant Commerce Clause Not directly related to Congress activity Comment - Canons are internal policy, like agency procedure? Nixon v. Missouri Municipal League 541 US 125 (2004)


Mo. Rev. Stat. sec 392.410(7) Political subdivisions arent to offer for sale telecommunications services 7 U.S.C. sec 253(a) No state or local statute or regulation, or other state of local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service Is there a way for the FCC to say that the provision does not violate the statute? Comment - The state is placing a check on itself, not prohibiting an outside entity? Comment - Just prohibiting offer for sale, not dispensation of service. FCC refused to declare the Missouri statute preempted, saying that any entity can be broadly construed. It is not clear enough to reach states in light of Gregory, and hence deals only with private entities, and not political subdivisions. 8th Circuit reversed, "conclud(ing) that the plain-vanilla "entity," especially when modified by "any," manifested sufficiently clear congressional attention to governmental entities to get past Gregory. " Supreme Court: "Coverage of public entities (is not) reliably signaled by speaking of "any" entity; "any can and does mean different things depending on the setting." Supreme Court reverses the 8th Circuit. Note - Entity is used in various ways in other federal statutes. Sometimes used as public and private Comment - The power was given to the FCC to make this decision. Note - states have a pointed interest in what their subunits can do. b. The Presumption against Preemption Geier v. American Honda (2000) The Supreme Court had a case involving a woman who was a car with belts but no airbags, and crashed into a tree. Sued American Honda for defective design. Supreme Court found the claim preempted by Federal Statute. NHTSA. Statute provides for retention of common law liability. 15% of cars were required to have passive restraint systems. A claim that every car would have to meet this standard was federally preempted.

Statute did not require middle, aisle seats of minivans to have shoulder belts. Honda had met its passive restraint quota. Is a claim for this design defect also preempted? Comment - It wouldnt frustrate a NHTSA regulation. The jury gets to decide whether this was a reasonable design under the common law. C. Presumption against Retroactivity Comment - Why not a rule against retroactivity?


Normally, legislation is to have future effect. No ex post facto laws, no bills of attainder. Under what circumstances would retroactive application be appropriate? Toxic Torts, Remedial statutes All power plants henceforth must restrict their output . . . Even an old power plant? Where people act ahead of pending legislation Tax bills introduced, and effective as of date of introduction, because people are likely to move their assets. Legislators avoiding exploitative behavior. D. Presumption against extraterritorial application Comment - How could Congress pass an extraterritorial law? E.g., on the high seas, commercial bribery abroad E. Scriveners Errors and Absurd Results Green v. Bock Laundry Machine (1989) Federal Rule of Evidence 609(a) forbids use of evidence of past criminality to impeach credibility, unless inter alia, the probative value of admitting this outweighs prejudicial effect to the defendant Here, the evidence is being used to impeach the credibility of the plaintiff. A - It may have been meant to apply only to criminal cases. Or B - It may be that Congress did not really mean defendant in civil cases. United States v. Locke Must file prior to December 31. What relevance that the mining company relied on a statement from a federal official? There is no estoppel against the federal government. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed Formalistic column vs. Purposivistic column?


Regulatory State Notes for 2/22 Problem from Last Class: What was involved was the meaning of the exemption from FOIA related solely to the internal personnel rules and practices of an agency (House said it was only applicable to Human Relations). It placed the burden on the government to prove that the exemption of internal practices and documents should apply to them. The President was concerned there was nothing to protect manuals and other documents, such as those telling the IRS how to go about selecting tax accounts for audit or charts that the US Navy may have drawn up to show how explosives were stored and the type of risks that might arise from accidental explosions. These are internal practices and documents, so the Senate extended exemption to cover internal practices that were not Human Relations.

Discussion: Which interpretation prevails? o Argument for Adopting the Senate Interpretation: Maybe the second house changed their interpretation due to pressure of a veto. Maybe the presidents interpretation carries weight because it wouldnt have gone through without his approval. o Counter argument: The bill was so popular the presidents veto would have been overruled by 2/3 vote. o Could think about it in terms of checks and balances. Congress is more representative. According to the Supreme Court: Justice Kagan writing for eight said that looking at both at the text and its relation to other parts of the statute there is no way we can read this other than applying to internal human relations. (This reversed an en banc D.C. circuit court decision). Kawashima v. Holder Akio and Fusako Kowishima were U.S. nationals who pled guilty to filing fraudulent tax returns. They are challenging a deportation order. The relevant section of the code has two clauses defining aggregated felony. Section 1): an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; 2) an offense that is described in section 7201 of title 2 in which the revenue loss to the Government exceeds $10,000 Discussion: In pari material argument: Section two addresses a crime other than the one they were convicted under, and cant fall into section one because it doesnt specify victim of government. Only section two did specified the government, so section one was meant to deal with a victim other than the government. Court didnt find this convincing. Said that by its plain language clause (i) cover a broad class of offenses that involve fraud or deceit. The fact that (ii) specifically says revenue loss to the Government doesnt violate the presumption against superfluities b/c its purpose is to ensure that tax evasion under 26 U.S.C. 7201 was a deportable offense. Judicial Reliance on Legislative History


Moore v. Harris Issue: is the Secretarys interpretation of the definition of miner under the Black Lung Benefits Title of the Federal Coal Mine Health and Safety Act of 1969 as only employees correct? Discussion: What obstacles did the court have to overcome to reach its conclusion that miner included the selfemployed? o The 1972 amendment doesnt change the definition of miner. Seems to adopt the agency interpretation. o Also in 1978 Congress expanded the act to include the self employed. o Therefore, you have two congressional actions that seem to agree that the agency interpretation shouldve controlled until they amended it. In 1972 they didnt amend it, whereas in 1978 they are trying to expand and extend it to self-employed miners. o After the act was passed in 1969 there was a prompt interpretation by the secretary to exclude the self employed. Are there textual problems to overcome? o Secretary argues that the statute uses work in mine in the title rather than employed in a mine. o Court counters that Congress used these two phrases interchangeably. The use of legislative history here is used to overcome post adoption obstacles, which are often given significant weight. Is this persuasive? o The 1972 amendment was very close in time to the original act. Perhaps it should be given more weight than the court gave it. o The arguments against the bill mostly consisted of discrimination of workers disabled by occupational lung diseases in other industries, but never in the distinction between working in and employed in a mine. The court makes a big deal over the fact that there were Congressmen from West Virginia and other coal mining states, would know there are self employed miners. Which way does this cut? o Maybe Congress just didnt think that enough were self employed for it to be a big issue. Could explain why they didnt amend the meaning until 1978. Suppose that the funds used to support black lung benefits were collected from mines of more than 20 employees. o Then this would just be a legislative device to get employers to support their employees. Its hard to imagine a purpose that Congress would have had to exclude this beneficiary from the scheme. Maybe even if the wording of the text and the action of the Secretary, and later Congress point the other way the court should still say that he is entitled to these benefits? The court may have been thinking that a reasonable person legislating with a reasonable purpose wouldnt have used this distinction.

Montana Wilderness association v. United States Forest Service Background: Burlington Northern is suing because there is a checkerboard alternating plots of privately and federally owned land, and in order to extract whatever resources they own on their land, they need to build roads across federally owned land.


Issue: Whether National Forest Lands referred to in 1323(a) of the Alaska National Interest Lands Conservation Act of 1980 means national forest land within Alaska Specifically or within all 50 states. Another question was whether the US was entitled to an easement by necessity in order to gain access to lands through private lands on the checkerboard? Court says no, and they dont have to address this issue.

Holding: The term only applies to lands in Alaska. The Courts Reasoning: 1. Textualist argument: 1323(a) should be read in pari material with 1323(b), which was meant to apply only to Alaska. Furthermore, no other provision in the act has nation-wide application. 2. Legislative History: The legislative history is sparse. The Senate committee report is ambiguous, the only senator who said the provision applied nation wide said so eight days after the bill passed, and in the house three reps. suggested it did apply nationwide but the chairman of the responsible committee said it didnt. While the Attorney General implied in a letter to two Congressmen that it did apply nation wide, there is no evidence the House knew of this letter. o The argument that it is only limited to Alaska: The rest of the statute deals with Alaska specifically. Class Discussion: The practical problem for Burlington Northern is that there is a checkerboard of alternating plots of federal and privately owned land. In order to extract the resources owned on their land, they need to construct roads across forest services land. The wilderness association is assisted by the in pari material argument. What else arms the wilderness associations claim that you cant go through this particular part of the forest services land? o Montana Wilderness Act Generally federal statute protecting these lands. If the Alaska National Interest Lands Conservation Act of 1980 was interpreted the way Burlington Northern wants, then it would implicitly repeal a portion of this act. What does the court find in the legislative history? o Senate Energy Committee Report: The legislative silence to whether it applies Nation wide or just Alaska is significant. The failure of the dog to bark is crucial. o The sponsor of the bill in the senate: (second order of magnitude in legislative history after committee reports) Senator Melcher thought that it did apply nation wide. The problem with this is he said this eight days after the bill was passed. o Representative Udall proposed an amendment to make it limited to Alaska, but it wasnt adopted. o Representative Weaver is the chairman of the subcommittee, and said it applied nation wide. The sponsor of the senate provision said the same. Are we again encountering a strong willed judge who knows how he wants to come out? Or is the court saying weve got to start with the text and that text has to be overcome. o There is a problem in the opinion the court says that there is no generally accepted meaning for the term National Forest System. It was discovered otherwise after the opinion. (This problem wouldnt have happened today with West Law). The case book authors say that most courts use legislative history. Do these two cases provide you with a confidence that legislative history is a good thing to use? o Legislative can be abused by a skillful judge


But the second opinion could be encouraging b/c after the subsequent history came to light the judge had no choice but to go against his presumption based on the text. Who else reads legislative history other than courts and legislators? o Other than courts, so do agencies and corporations who are affected. o The will need to comply with the laws and one way to make sure they do so is to look at the legislative history. Go back to Montana o If you just read the text, you would have a statute that look like it just dealt with Alaska. Tools for Considering Changed Circumstances Bob Jones University v. United States (Congress often enacts statutes that are given different meanings by courts over time in response to changing circumstances. This reflects the idea explicit in the French Code that changes in circumstances should influence the way the law is read.) Back Ground: Up to 1970, granted tax-exempt status to private schools, disregarding racial admissions policies under 501(c)(3) of the Internal Revenue Code and granted charitable deductions for contributions to schools under 170 of the Internal Revenue Code. Discussion: o When 501(c)(3) was enacted, what did it mean for Bob Jones? o It allowed them tax exempt status until the IRS changed their interpretation in 1970 to exclude private schools which practice racial discrimination. This was a response to a district courts grant of preliminary injunction prohibiting the IRS from according tax exempt status to these schools. o The Supreme Court upholds this new interpretation. The Court says that we have a different public policy now when we had then which justifies the change. Justice Rehnquist Dissent: o Congress defined charitable. The court cant redefine it. The court doesnt have the authority. What is the response to this? o Charitable has a meaning that is consistent with changing public policy. o Also the court didnt make this interpretation the IRS did. The question is did the IRS make an error in the interpretation. Which can sometimes produce more room. o However, the counter to this response is that the IRS changed their interpretation b/c of a judicial opinion. So it was judicial work. (The history of the Bob Jones case is connected to Columbia Law School. The record for Supreme Court arguments is held by a grad called Larry Wallace? He was acting as the solicitor general at the time. This was his argument, against orders from the Regan office.) The Court makes an argument that since Congress failed to redefine the provision in response to the IRS interpretation, they acquiesced in the IRS rulings. But Congress enacted a provision that deprived social clubs that discriminated from tax exempt status. Which way does this cut? o The majority says that they are articulating the national policy against racial discrimination.


Rehnquist says that it shows that Congress can add a requirement prohibiting tax exempt status for racially discriminating institutions when it wants to. The court or IRS should not be doing it for them.


Theories of Statutory Interpretation 1) In English, words, phrases, sentences, and longer texts are frequently indeterminate in meaning. The context of language helps to narrow, but often does not finally determine, the meaning to be ascribed to it. - Manning: May take issue with the idea that the meaning of language cannot be defined by its context. - Question: What is context? Is it the corpus juris? - Manning: Focuses on the entire body of common law and its tradition as the context within which interpretation is carried out. He classifies himself as a soft purposivist. Plain Meaning may in the mind of the beholder o subjective rather than objective o space of what can a statute mean and what does it mean o multiple possible readings o acknowledging open to different meaning, heres why it doesnt mean that 2) The context of language helps narrow, but often does not finally determine, the meaning to be ascribed to it - Solan: Language in different words gain meaning from the context and different conditions within which it is appropriate to use words (think of child development), and this same mechanism is used when reading statutes. - Farnsworth: This inquiry depends first on whether or not you determine words, phrases, sentences, and longer texts are indeterminate. 3 Groups Would ordinary reader of English find this ambiguous Are there multiple ways to read this texts Farnsworth experiment of how ordinary reader would approach text depends on how we understand & read it, and not how congress would understand the words in writing them. This treats statutes as readers texts instead of writers text. A readers text may make it more like a contemporary texts, than a meaning writer intended when it was written. Policy Prescriptions: Looking outside yourself may create a bias in itself - Claim: Whether or not something is indeterminate is conditioned by (a) the frame of reference used in approaching the text, and; (b) swayed by peoples individual policy preferences. - Claim: Plain meaning is an individual ascription, just what that individual considers plain. - Strauss: Your legal approach to any type of textual interpretation should be two-fold: 1) What could the statute mean? 2) What does the statute mean? It is within this prong that legal persuasion comes into the fore. Rule: Always start with the texts Perspectives: This may lead you to different places Breyers response to apply leg history only when text is facially ambiguous and thus indeterminate. If you think statutes are frequently indeterminate, pass to use legislative history Textualist: Go to dictionary, but why not committee? When too ambiguous go to the Legislative history - Where J = judges personal preference, which of the following diagrams better reflects reality and, consequently, the situation in which she is most likely to be constrained in enacting it? 1: The realm of legislative history is more expansive in relation to the possible meanings of the text.


2: The realm of possible meanings of the text is more expansive than any clarity of meaning put forth by the legislative history. Nelson: does consulting leg history expand the text or narrow the text Depending on persuade the judge Johnathan Mellow: Everyone is a textualist, theyve won their battle. Therefore proclaimed textualists are simply overboard textualists. Shaw Reycoff: Statutory interpretation is craft showing how either textualist or purposivists could get to similar results (just get to different paths. - A way of conceptualizing these two paradigms is to see them as methods of persuasion that a lawyer could use in persuading a judge to adopt her own interpretation of the text. - Manning: The intent, if any, might very well be hidden within the statute because of the presence of special interest groups throughout the legislative process. - Note: There may be a prior discriminate as to the truth of whether or not texts are frequently indeterminate. If you think that this is the case, you may adopt the Breyer justification for use of legislative history as clarifying texts that are indeterminate on their face. - Contra: You should be wary of your starting point in statutory interpretation do you (1) look at the legislative history, or; (2) the text itself at the outset? Adopting (1) first does find its way into SCOTUS decisions, but this may not (correction: is not) probably the right method of interpretation if you envision your role of the judge as a faithful servant of Congress. - Reikoff: Statutory interpretation is a craft, showing how either a textualist or a purposivist could get to similar results but by taking different paths to get there. 2) In any litigated case that reaches higher appellate levels, plain meaning is probably a disguise for other arguments. To have a plain meaning holding in a case decided 5-4 is oxymoronic. Schauer: o Plain meaning is a disguise to assume statute as lower courts held it to be leading to o Second best meaning adopted because judges dont believe this is best way to assert a view, but requires little effort o Whatever the text may say, it means something else - Idea: How can a 5-4 decision be made on the basis that the meaning is plain? Clearly, the split evinces the idea that there was no uniformity as to the ordinary meaning of the text at stake. Psychologically, the assertion is that it is the reader whose understanding counts, and if the reasonable reader could reach only one conclusion Their particular provisions draw meaning from the document as a whole, and from the milieu in which they are used. Buzbee: One Congress. Cts depend too highly on the perfect drafter, so it should not be assumed that Changing congress would use consistent Does milieu have a whole code meaning or the political context of the time o Social: which words have common meaning? Whos the audience: not common meaning, but intended meaning Eskridge: statutes are inevitably going to be applied to unforeseen circumstances, which courts should acknowledge this reality Easterbrook: look to text, understand the space of meaning (possible v. actual meaning) o Accepts statutes are deals


Posner: since courts are not authorized to go beyond deal, unless it is a framework statute and congress anticipated they would have to for it future meaning. This analysis would require that judges could be depended on to read legislatures purposed of what kind of statute they were creating

Is there 1 kind of statute 1) Some statutes, that might be described as framework statutes that invite judicial discretion overtime a. Reading statutes as reader-based or enacting-based (i.e. attempting to discern how Congress would have interpreted the text). 2) Other statutes use imprecise language in order to achieve enactment. Such are intransitive statutes creating administrative agencies are a common example. a. Reading statutes as reader-based or contemporary-based, i.e. whether interpretation and meaning may evolve over time depending on changed circumstances. 3) Some statutes are deals, precise response to a particular circumstances of the moment lacking any expectation of future development or change. a. How ready should cts accept statutes as deals b. Should legislators be held to the public purpose of statutes (deals are expensive) 4) Can one reliably tell which is which?

- Schauer: Doesnt find the claim that plain meaning is a disguise for political preferences as persuasive, citing examples of cases in which this was not to be the case. - Q: What is plain meaning a disguise for? - Plain meaning is second best in the sense that judges do not necessarily believe that this is the ideal way of resolving a dispute in the abstract but as a way of resolving the issue with relatively low effort and hopefully good effect it is under these circumstances that the plain meaning approach would be applied. Like contracts, statutes are texts, whose constraints must be observed in all but the most unusual of circumstances. Their particular provisions draw meaning from the document as a whole, and from the milieu in which they are used. - Buzbee: Incorporating the social milieu is overdone by the courts. It is a mistake to draw too much from the overall milieu of the law, since it is unreasonable to assume that any particular Congress has particular knowledge of the corpus juris preceding the enacting provision. - Note: The understanding of milieu is a whole code meaning under this understanding. - Eskridge: (p. 11); understanding of milieu. Unforeseen circumstances. 4) Some statutes, that might be described as framework statutes, invite judicial development over time as was anticipated, for example, by the drafters of the French Code Civile and the Sherman Act. Others use imprecise language in order to achieve enactment; intransitive statutes creating administrative agencies are a common example. Some are deals, precise responses to particular circumstances of the moment lacking any expectation of future development or change. Can one reliably tell which is which? With any implications for the best interpretive approach? - Easterbrook: You look at the statute first, decide what its range of possibilities are, and then look to the legislative history as the milieu in motivating Congress. It is with these values that restrict the potential meanings of the text. He is much more attentive to the idea that statutes are deals.


- View: Statutes are deals, and courts are not authorized in going beyond the deal UNLESS they find that Congress anticipated essentially delegated to the courts future development of the issue in question) - Method: 1) Is this statute a deal? 2) Is this statute intentionally vague in order to leave it to the agency or the court in ascertaining its meaning? - Macey: If we spend time looking for deals, wouldnt we just be encouraging them? This would seem to be somewhat anti-democratic. Arent we better off holding legislators to the ostensible public-regarding purposes of statutes as a way of making deals more expensive? - Vermuele: Points out that the judiciary is not a unitary actor; it is not capable of doing things monolithically. Because of this structure, any argument that says, We should interpret statutes this way to incentivize Congress in a particular way is futile and misses the point. - Lopez a statute was found unconstitutional, one of the main reasons being that there wasnt a body of legislative research that showed a connection between handgun violence and interstate commerce. - In response, Congress gathered such research in order to support a similar statute. - Morrison - Point: Once the senators and congressmen and congresswomen realize that courts are spending so much time combing through legislative history, Congress began compiling massive volumes of congressional accounts. In turn, the courts began turning away from its use because it began finding that the process was being abused by congressmen and congresswomen and causing distortions in legislative behavior producing inappropriate results. Evolution of the use of Staturory Interpretation 1920-1930: Courts got in trouble, so started resisting legislative history Led to FDR aim to expand judges switches the pattern of judges 1938 Cts infatuation with Leg history Cts make it clear that they are listening to legislators Legislators start manipulating legislative history Manning: gone are the days that legislators talk to one another, now only talk to courts

Which is less desirable as the outcome of litigation over statutory meaning, and why? (1) Defeating the probable expectations of the enacting legislature. Bremeur: Lower level judges shouldnt, but higher level judges can elicit democratic response & should defeat probable expectation Defeating legislators view makes it hard to get better legislation especially since president can veto through many veto gates Probably there is no way for Congress to correct a statute again because of veto gates Jeremy Waldron: Citizens and Courts must have faith in legislatures and legislative process, best branch to speak for the people since they are directly elected by the people, are the best-equipped in speaking on behalf of the people through legislation. Judge-made law sometimes carries with it the danger of undermining what the people and citizens may have agreed with. Hence, (1) would be the least desirable outcome of litigation. (2) Diverging from established judicial doctrine (e.g., common law) Easterbrook: must apply dicta or holding Chevron Doctrine: start with the text (3) Defeating settled expectations of contemporary affected communities. (4) Reaching a result todays Congress would not enact. Textbook example: excluding homosexuals as aliens not currently a law Congress would enact


Best way to interpret statutory text is define what meanings todays legislators would assign (dynamic statutory interpretation) Speculative and open to judge Nautical: what understanding has legal community come to o Todays community can say homosexuality is no longer a disease o External from the judge o Not really what todays legislatures would understand it

- Commentator: Argues that you should defeat the probable expectations of the enacting legislature (1) forces the current Congress to re-enact a clearer statute as a means of disciplining them. - Contra: It might be quite difficult to get correcting legislation given changes in the political hierarchy. - Response: This isnt necessarily a bad thing. If the current administration cant get the statute passed, then maybe it isnt such a bad thing that the court struck the statute down. - Example: Every one of the 11 Circuits has held that the SEC and private individuals suing for violations of SEC rules can base their actions on aiding and abetting liability not only those who committed the offense but also those who aided and abetted the carrying out of the offense. - The case gets to the Supreme Court. The justice observes that this is the statute, but the justice also strongly believes that the 1934 Congress that enacted the statute did not have aiding and abetting in mind. Which way do you go? - Waldrons Proposal: Even if there has been this change in public opinion, we should have faith in the enacting legislature. - Reality: 5-4, struck the interpretation down in claiming that the 1934 Congress did not consider aiding and abetting. - Strauss: If you can in fact establish that the law has come to rest at a given point, and the community understands it and behaves according to this view, dont make waves. - First Rule: Dont make waves. - Professor Gluck (on the Erie Doctrine and statutory interpretation): Talks about whether theories of statutory interpretation should be treated as holding v. dicta and therefore as law. Hence, this would fall under (2), that if courts do hold certain interpretations as binding doctrine (as some do), then (2) may be the less desirable of any outcome of litigation over statutory meaning. - Claim: The best way to interpret statutory texts is to divine what, of the possible meanings, would be assigned to it by todays legislature. - Aleinikoff: The nautical method of interpretation. He argues chiefly that, in todays contemporary affected communities, homosexuality is no longer disease, and this is the accepted definition. He would consider (3) to be the less desirable outcome of litigation over statutory meaning. Comments on Particular Theories? - Strauss: Dont believe the books assertion that there is a historical order in these theories. The middle two are identified with particular contemporary authors, but even these could be found in earlier practices. And be careful to understand the advice at the beginning of the next section as being to make arguments based on the tools [i.e. not theories+ of statutory interpretation roughly in the order and with the weight that we have presented them. - Note: The reference is to TOOLS and not theories. A) Intentionalism? B) Purposivism? - The difference between the two is one of degree of generality:


1) Purposivism: Has more to do with an abstract notion of what the law is setting to achieve and how it fits in with broader general policy objectives. 2) Intentionalism: May be much more narrowly construed. C) Legal Process purposivism not so much a theory but more of a guideline to good judging. D) Imaginative reconstruction (Posner) - Easterbrooks response: No judge is smart enough to do this. - Claim: There might be a way of seeing this approach as answering the following question: To what extent did the Legislature expect the courts to take a role in developing the body of law? Are Statutes Static? - The issue is what they meant (to whom?) when enacted? Not, which if any of the following should be consulted? - Considerations to take into account on determining whether or not a statute is static: a) Enacting legislatures anticipation that meaning would develop. b) What previous courts have said their words mean. - Strauss: Does not like this justification. The generating impulse is always the social circumstances and not what previous judges said years ago. o England prioritizes the social contexts over what previous judges said about law c) Intervening legislative developments. d) Intervening changes in the common law generally. e) Intervening changes in how language generally is understood. f) Intervening large-scale social changes (e.g., industrial revolution). o French revolution g) Judicial appreciation of changing social mores. - What circumstances, if any, do these intervening events or changes warrant outcomes that cannot be rataoinzlied in terms of: A) the statutory text? B) Inferable statutory purposes? Food for Thought: Is Posners idea of Imaginative Reconstruction simply a bold way of describing what purposivist and intentionalists are already doing when faced with a hard question?


The situation we ought to have in mind in historical terms: Interpretation has spanned all of our history. Part of what has affected interpretive styles has been the varying roles in generating law of the different institutions involved (courts, legislatures, agencies). Courts have become less important over time while legislatures became more important. Agencies powered in around 1930 and have gotten increasingly more important. As these changes have taken place, attitudes about interpretation and the institutions involved have changed as well. 1776-1850: Age of Discovery when the common law ruled and Judges were very willing to make new law. 1850-1936: Age of Faith when Legislation began to overtake the common law. Judges, resenting this intrusion relied on literalism and formalism to box out statutes. 1937-1985: Era of Apology when Judges fell over themselves to be subservient to the legislators. Legislative history came into vogue during this time, but it tended to be over-relied upon. 1985-Present: Textualism becomes important as Judges react to the overuse of legislative history. Among the reasons for the emergence of agencies was that courts could not do all the work left to them by legislatures. See Merrill, Columbia Law Review Spring 2011 (article about this transition). Available at (Strauss sees it somewhat differently (forthcoming article in Columbia Law Review). In Vermeules view, it moves from the age of discovery when most law was made in courts and common law reigned supreme. Judges were quite conscious they were making law. This turned into the formal period where legislatures began to take over and courts resented it. After this, the era of apology after the New Deal, when courts were falling all over themselves to give deference to Congress. They relied heavily on legislative history, which legislatures were aware of. Now, were back to Justice Scalias point of view (new textualism) and the stunning emergence of dictionaries as a major feature of Supreme Court decisionmaking. Percentage of cases citing dictionaries increased over the 20th century although it leveled out after 1992. There is no single way to interpret statutes (H&S). Also see Todd Rakoff, Statutory Interpretation as a Multifarious Enterprise, 104 NW U.L. Rev. 1559 (2010) Available at: Something Rakoff is sensitive to and much of the literature ignores is that interpretation often goes on outside the Supreme Court. It takes place in lawyers offices, trial courts, appellate courts. The Supreme Court gets 80 cases a year, many of which have nothing to do with statutory interpretation. A particular thing to pay attention to is the site of the interpretation that is under discussion. Are we talking about the Supreme Court, other courts, lawyers, or agencies? Its not just level of court, but also how true are the propositions about attorneys. Eskridge/Frickey Piece (Bressman et al p. 364) All of these pieces (this included) are directed toward judges as agents of interpretation. Judges are eclectic pragmatists according to E/F. Similar to Rakoff: this is a craft, not a science, and people use a variety of techniques to come to their conclusion.


<Funnel of abstraction> Most Abstract Current Policy Evolution of the Statute Legislative Purpose Specific and General Legislative History Least Abstract Text of the Statute

How does the data sourcing in Eskridge/Frickey (where they get their data from) differ or seem to differ from where the other authors in this section get their data? What, if any, significance does this have for understanding their work? Their general approach looks at 3 Supreme Court cases. Its not as much of a data driven approach as the other two. In particular, they pick cases where the judges themselves are very consciously talking about theories of statutory interpretation. Strauss thinks you should be wary of turning anecdotes into data (cherry picking). What do they derive from these three cases? Gadamer has a theory about how reasoning and interpretation occur. The authors draw on his theory. Gadamers theory is that you start within yourself and then project yourself onto what you are reading. In turn, the text influences you. This creates a hermeneutic circle. There is a dialogue between you and whatever you are reading. Does this mean the justices just have a personal dialogue with the text which is different from the dialogue anyone else in society is having with the text? One of the odd things about the funnel of abstraction as a metaphor is that in a real funnel things go from wider to narrower. As Eskridge/Frickey describe the funnel, they start at the bottom and


move from narrow to wider: a geyser of abstraction. The right way to think about this is a pond (at the top) fed by a spring at the bottom. The stream that wanders off at the top is the stream of interpretation. Is the point of their use of Bob Jones to say that one justice was using X theory and therefore? Or is it something different? Are they uni-theoretical? No. Their view of the judge (and maybe also the lawyer) is that you come to a text with a disposition to see it in some particular way. Then, the iterative process (fusion of horizons) takes place and theres a back and forth with the text in which the text might win, or other factors you consider might win. In the law business, we have to hope that it does, because its not helpful to say everybody, figure out for yourself what this text means. Another reaction to Eskridge/Frickey: how ultimately do you arrive at a decision under this model? Do you come back to the text in the end? What ultimately emerges is an interpretation, an understanding of the text Strausss understanding is that they dont have a necessary answer to this question. Judges generally (and lawyers) have this iterative process where all these levels (concrete to abstract) have varying influence. Maybe it emerges at the bottom, maybe at the top. We might want to describe it as the Eskridge-Frickey mixing bowl. A lot of these inquiries depend on ones sense of the integrity of the interpreter (their ability and willingness to get out of themselves). Dont make waves This presumes they are reflexive interpreters, consciously examining whether their favorite theory should be applied. Its a professorial approach. Much of the data here might be intuitive. These intuitive sources dont get much credit in these readings, but are as far as you can go in epistemology. Ex: Bob Jones. Rehnquist values the more conventional meaning of the text, so he spins off at one level (perhaps legislative purpose). Burger moves up the pond to policy. Another perspective: the metaphors muddle what they are trying to say. Maybe its best to think of it as interpretation soup. Maybe its best to take an approach like Hart/Sacks and Rakoff and approach it as a craft. There are different tools, the craft lies in knowing where to use them Another perspective: the cable metaphor is helpful, trying to figure out which methods go together the best. This accurately reflects what people are trying to do. Sometimes cables have wires that all pull in the same direction.

Ultimately, theres no data. Strauss if fond of an opinion by White where he just knows what drives the psychology of judges. Thats more or less whats going on in this piece. Response: not having much data isnt that important. The articles with data came to shocking conclusions like policy preferences matter. Do we really need lots of data to reach these conclusions? Moreover, dont other pieces that use data to point to one factor above others misstate their data? Part of this comes down to what we want to believe about a legal system. Tools overlap you cant build a house using only screwdrivers. A step further: none of these articles have any empirical data. Even the studies that claim to be empirical dont get to how judges make decisions. Spaeth, for example,


doesnt get at how judges think. Just because judges are influenced by ideology dont mean that they are using one specific process. And, most of these studies are only talking about Supreme Court justices which brings about its own distortions: they arent representative because they have to pass a rigorous political vetting process, they may be smarter than many other judges (Strauss isnt so sure), they only look at a few cases which they get to pick, these cases tend to be the hardest Is it shocking that justices selected on the basis of their political world view issue decisions that align with their political world view? There have been studies on this strange correlation between the president that appointed a judge and their judgments (Sunstein/Mile is the best of these). They did elaborate coding and found that if you compare the judgments of panels that were composed of 3 democrats (appointed by Democratic presidents) to the judgments of panels of 3 judges appointed by Republicans, there was a general skew. The Republic outcomes were distinctly more conservative on any given area of law by a statistically significant margin. Another interesting and perhaps reassuring thing about this study was that there was no statistically significant differences between 2 democrats 1 Republican, or 2 Republicans 1 democrat panel Theres a psychological observation that when groups gather and discuss their opinions, their opinions get more extreme. So, a group of moderate justices working together may shift further left. Sunstein has a book The Republic (or something similar) where he was worried about the tendency of the internet age to segregate people into discussion pools where everyone thinks the same way. These effects can be self-reinforcing. Proposal: panels of 3 should always be composed so that they have at least 1 Republican and 1 Democrat. Independent Regulatory Commissions are supposed to work that way by and large. They all have appointment terms that restrict membership to no more than a majority of one party. Is this a good idea? There could be an implementation problem: do we have enough judges of each political party in each circuit? This could institutionalize some of the problems of the 2 party system. It strongly influences judges to decide according to party line every time it might contribute to polarization of interpretive theory. It could also create a false sense of security. The Supreme Court is currently fairly mixed, but theyll still occasionally reach a decision that diverges from past views (ex: Citizens United). Mixed panels could add an unwarranted veneer of legitimacy, making all decisions appear moderate Randomness of assignment could play into the moderation effect because on average if youve got 40% democratic appointed judges and 60% republican judges, then youll get consistent mixes. Some judges that Strauss suggested this to were completely horrified: What?! Admit to this? See Gregory v. Ashcroft judges dont make policy. More than that, this scheme would be announcing and enabling what judges resist Roscoe Pound has a phrase about the toughness of tradition This affects lawyering youre never sure who is going to hear your case when you submit a brief. Lawyers used to figure this out through the window of the courtroom door.


Question has this been used for a petition for rehearing en banc? Not sure, but it would be inadvisable to frame a petition in this way. What you could say is that the outcome has diverged from the general trend in the circuit that might get you a rehearing en banc

If Eskridge/Frickey are correct, what purpose do theories of statutory interpretation serve? Providing a framework through which opinions could be helpful both in terms of precedent and in legitimacy. This is helpful to lawyers who have to argue other cases in the future as well It doesnt preclude thinking about types of reasoning, it just means different judges will place different weights on different theories and tools of interpretation Its not a pretense certain judges have firm convictions that certain elements in pond/funnel/geyser deserve more weight. If you jettison these canons, each judge becomes an idiosyncratic pluralist These theories provide a language for judges to reason and speak to each other. These help decide easy cases (similar to the second-best proposition). Edwards, former Chief Justice of the D.C. Circuit, reacted to accounts about political decisionmaking with the proposition: 60-70% of our cases are unanimous because they are relatively easy to decide. In another 30% of cases there are fair arguments to be made on both sides. They may persuade one judge or another but we always can and do find our responses in the terms of the text and the existing law. There might be disagreement about what that is but we dont have to go outside of that. There are only a handful of cases in which a decision cant be reached based on the materials and require policy viewpoints. These cases generally get to the Supreme Court.

NHTSA (segue to discussion of Guthrie) Featured in the Times recently. Yesterday, they were going to announce a rule requiring every automobile to require a rear-looking camera in every car by a certain date. Today, LaHood said the rule isnt ready and will be issued by December 31st. This may have something to do with the presidential election. This is similar to the Guthrie article, which is about distortions. Who are judges and how do they decide? The focus is on their (our) weakness as decisionmakers. One way humanity is weak and irrational about making decisions is that we dont have a perfectly smooth technique for evaluating risk. People ride motorcycles to anti-nuclear power plant rallies. We spend a lot more money to protect our children from accidents than we spend to protect ourselves from accidents. You can line lots of children up behind a car in ways that could not be seen through a rear view mirror (ABC news got 62 behind a car). About 104 children are killed each year this way. It costs about 200$ per car to install a camera. The cost of prevention is $2.4 billion multiplied across every car thats $27 million per child. Worth it? Recall Geier v. American Honda (pre-emption case). Guthrie et al judicial decision-making Once the possibility of cognitive error is presented, people may self-correct. This could be opposing counsels job. It could also be incumbent on the judge (although we are talking about judges here). Perhaps there should be a campaign to make judges aware of this? Then again, this affects trial court judges, appeals court judges etc. They have some cases which they have to decide on intuition (every 30 seconds if youre a trial court judge). If you practice, the anti-intuitive answer can become the intuitive answer. There is a lot of education possible that affects the way our wiring works. Strausss favorite: theres a game


called the ultimatum game. One person gets a small amount of money (say $1) and has the opportunity to propose to the other player how it should be split. The other person can say yes or no. If they say no, no one gets anything. When this is played among normal people, you get refusals at around 70-30, and the usual pattern is closer to 50-50. When the game is played amongst economists, 95-5 is commonly accepted. Economists dont have a high marginal utility for justice. Another issue with these studies they seem to test judges on skills that they dont use. Law school doesnt teach you to apply base rate errors.


Highlights of Class:

Agency Rulemaking: Agencies are continually engaged v Courts who have discontinuous and distorted engagement. Formally, there is limited interaction between the Agencies and the President or Congress, but both impact the process informally. The public can voice its views on proposed regulation via the comment procedure established in 553 Internet is changing public involvement with access. Background Question: In procuring comments, is the agency trying to find out what the public wants or trying to undertaking a scientific analysis? Political or technocratic? Regulations are more legislative than judicial: There is only one date for submission of the data. Everyone who is in favor, everyone who is opposed is the same. Also, there is no legal restraint on continuing to talk to the agency. Standard 208 Changed substantially over time due to political pressure Didnt always reflect the most efficient safety regulations due to pressure from industry and other factors.

Transcription of Class: TOPIC 1: Differences between agencies and courts: 1) Perhaps the most important difference between an agency and a court, is that an agency has more or less voluntary contact with their particular problems. Agencies are activist: they are continually dealing with the ordinary and the routine as well as the unusual Courts are passive: people bring things to the courts, and they bring only the unusual. This is particularly the case when you talk about appellate courts. 2) Agencies generally have the power to set their agendas in their regulatory spheres Question: Agenda-setting is autonomous when compared to courts, but how about when the President and Congress attempt to influence regulation? Within the regulatory sphere Congress can have committee hearings with an agenda, such as to pressure agencies to create or not create a particular regulation. Similarly, the President has a variety of connections to Agencies, including ones that show up today and Wednesdays reading (even if they are independent agencies).

Remember : The Constitution says very little about the relation of the President to the government, and what it does say bears equally on all Agencies. 1. The ability to require an opinion is the same for all agencies. Notice the difference between commander in chief and the ability to require an opinion. (More of this on the Wednesday reading.) 2. History Point: There was a time when this may have been a disputed proposition, but no longer, independent regulatory agencies are part of the executive branch. They just have a different relationship and structure than the single headed agencies like the EPA.


Topic 2: Rule Making Slide: Administrative law concerns the interface of law and politics, and, thus, possibly unfamiliar structures of political institutions and procedures. There is direct interaction between Agencies and Congress, Agencies and the President, Agencies and the general press, Agencies and the courts, and Agencies and the trade press. Agencies themselves are composed of incredibly complex hierarchies within their own structures. Slide: Levels of power and authority:

We're currently at the level of thousands of regulations in our studies of the rulemaking process, with their tens of thousands of interpretations.


The dotted line on the slide,this is where the APA starts to say things. A lot happens above the dotted line. Rule making is on a legislative model, not a judicial model. It is useful to think of the provision to develop rules by analogizing to the development of statutes rather than to litigation. Rule making produces effects that are similar to statutes: Tends to be more elaborate because it is at a different level of detail but it binds people the same way Occurs in stages First step is to formulate priorities: These days there is something called the Regulatory Plan. This requires the agency to inform the white house what it thinks it priorities will be. Not unlike a budget instrument gives the WH the ability to coordinate and bring pressure large and small with achieving the president political priorities. The agency might be encouraged or discouraged to have matters in their sight Twice a year an agency must announce what is on their plate, but have not gotten around to a formal notice of rule making. Can find the on the Any item in the unified regulatory agenda will give you an item and a name of somebody to talk to. It is clear that the public can engage with the agency in working out what the agency might be doing.

OTHER STAGES: Then there is the stage where the cost benefit impact analysis is undertaken (as specified by the executive order). The current executive order 128-66. Adopted by Clinton, it has been continued with a few changes that Bush made, Obama retracted the Bush changes restoring the Clinton version, but now made some slight changes. (more in admin law) The analysis is sent over to the President and the principal bureaucratic office This is all still before the notice of proposed rule making (NPRM). Once there is preliminary analysis, there is a negotiation process. It may involve the President, and it will involve people who think they know what the President wants. The draft does not appear in public view until all this has happened. Slide: 553 Rule Making; see casebook page 836 (a) This section applies, accordingly to the provisions thereof, except to the extent that there is involved a military or foreign affairs function of the United States; or a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include: a statement of the time, place and nature of public rule making proceedings; reference to the legal authority under which the rule is proposed; and either the terms or substance of the proposed rule or a description of the subjects and issues involved [emphasis added by Strauss] Except when notice or hearing is required by statute, this subsection does not apply (A) to interpretive rules, general statements of policy, or rules of agency organization, procedure or practice; or


(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. [emphasis added by Strauss] (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except 2. a substantive rule which grants or recognizes an exemption or relieves a restriction; 3. interpretative rules and statements of policy; or 4. as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

CLASS COMMENTS: 553(a): If it could effect somebody in a negative way, rule making is probably required. (assume that this applies to any regulatory rule) 553(B)(3) : Question: Does the agency have to draft the rule and publish it in the notice of rule making? No, there a whole lot of disjunctives. What about the date that the agency has which leads the agency to rule making? Does that have to be made public? Students: Was there not a ruling about this? And what about the scientific stuff? Strauss: No the Supreme Court has not ruled on this yet. Judge in DC circuit and agent provocateur has been sending hints to SCOTUS that they should rule that the statue only requires the disjunctive. And not of that requires the scientific data that they are basing there reasoning on. But how can you have a comment period if we do not know what the agency knows? Or perhaps we can connect this to FOIA. But, there is not a necessary legal connection in this way. It is also true given the current executive orders, they require putting the data into the document where the public can see and comment upon it.

There is only one dates for submission of the data: Everyone who is in favor, everyone who is opposed, is the same. Everyone files there comments at the same time. So if you were to imagine a pre-Internet era, getting comments was hard. If you wanted to see someone else comments as an outsider, what would you do?f If you do not know the comments how can you ask for the one you want? For the comments as a whole you will go to the public reading room. Perhaps, some of the comments may be on desk of bureaucrats working on them.

One begins to understand the import of 1. Not only do you have the opportunity to comment but you can have access to any of the comments that might be there. QUESTION from Student: What does consideration of comments mean for an agency?


Strauss: Depends. Sometime a group gets people to send 30000 of the same comments. Fortunately, there are also computer programs that read them, and provide the agency of the fact you have 30000 of the same comments. The fact of the 30000, raises the question: is this a technocratic process or a political process. Are we trying to find out what the public wants or are we undertaking a scientific analysis. The answer to this will determine how we treat the comments that we get. Most likely, you are going to pay attention to comments that have a point to make. If you look at the comments from a Machiavellian perspective, you ask, how likely is this guy to challenge us if we do not take account of their comment? What might happen in judicial review? Another way of putting this, the question is not, do I think this is an important comment, but what is the chance that judges X or Y think it will be an important comment? What is the chance the judges will throw this rule in my face after all the time and energy I put into making this rule. Perhaps this helps to explain, why the statement of purpose and bases was anything but concise and general. These consideration are a product, in a significant respect of judicial review that occurs later on. How long should the comment period be? Not specified: 1 day, 90 days. Executive order has a 60 day suggestion. There is no presumption that people will now what other people will file. This is very like a legislative hearing,. The agency does not have to have oral presentation, but if they do it will be on the order of a legislative hearing not litigation like, there will not be a confrontation, cross examination, ect. Strauss: So far as it appears from this provision, what is the role of congress or pres. in starting or approving, controlling, revising, and agencies rule making? Student: Presumably nothing more that an interested person. Strauss: In the statute there is nothing more but there all these relationships. The white house really has a substantial opportunity. Does the pres just counsel the agency or does he tell them what to do? In formal terms, the president requests, in practice, somewhat more than that. There is something called the Congressional review act the means by which congress would reassert control over the regulatory rule. Today, before a regulation can take effect, it has to stand before Congress for 60 days. During that time they can enact a disapproval of this regulation. This requires both Congressional approval and the Presidents signature. This is not likely to occur, though it is slightly more common during transitions. The one time that it has happened was part of the Clinton/Gingrich deal as part of the Contract for America. In the closing days of the administration, a regulation was instituted concerning an ergonomic standard for protecting wrists. When Bush came into office, this was disapproved. Obama, however, did exercise this power, because one of the things that goes with it is that the Agency no longer has authority to adopt similar regulations until Congress acts again to allow it. Strauss has trouble with this standardless No! but thus far no one has gotten around to challenging the process. Regardless, a President who approves of the kind of regulation but not the regulation itself is unlikely to exercise the disapproval power due to the slop-over. Topic 3: STANDARD 208 Slide: Standard 208 timeline: 1967 Standard 208 requires seat belts (Johnson) 1969 Passive restraints proposed (Nixon) 1972 Final rule requires passive protection by 8/75 ignition interlock required in interim 1972 Aspect requiring passive protection judicially vacated testing of dummies insufficiently objective 1974 Act amended: safer school buses, recalls, no passive restraint without congressional approval (Ford) 1976 Requirement suspended; road test proposed 1977 Required passive restraint renewed, effective '82 (Carter)


1979 New regulation upheld on appeal; no legislative veto 1981 Suspension proposed, then adopted (Reagan) 1989 Passive restraint requirement finally effective (Bush) 1991 Legislation requires airbags as of 1996 The 1974 Amendments were produced by the 6th Circuit opinion that said that the admission interlock part of 208 was valid, but for the rest of it required more adequate explanation for how to test compliance. The history is full of congressman talking about people who had to strap in their turkeys and other practical objections to a regulation that, with refinement, could have saved many lives. Regardless, it became a requirement that there be no passive restraint regulation without Congressional approval. Oddly, the statute was amended for increased school bus safety in a way that did not fit with cost-benefit analysis, so there are flaws in the regulation that didnt plague the passive restraint requirements. FORD: decided to simply get cars on the road without passive restraints. CARTER: reversal: renewal of the requirement for passive restraint, and this time it gets judicial approval. Not until 1982 did the rule actually become effective. We knew for around 10 years that this kind of improved safety could be accomplished. Why, if in 77 the requirement for passive restraint was renewed, was it not until 82 that it took effect? Economic explanation: takes time to change the cars. Note that it took 20 years from original proposal to make it happen. If we know that more than 7,000 people a year die, this means 140,000 extra people dead. No one has any problem with the authority for the secretary to adopt this rule? It is practicable, because it can be instituted fairly easily. It meets the needs of motor safety. Objective terms: This was the initial trouble, but the issue was resolved after the amendments. What would you expect to see in a bill on the house floor? You might think that some of what you find here corresponds to a committee report that accompanies a bill to the floor. However, a bill on the floor of Congress would not put forth alternatives; it would have one proposed course of action. Here, one can sense that NHSTA is least enthused about the third option: rescinding the rule entirely. As a safety agency, theyre obviously most concerned with the cost to human life. What was the rationale behind the small to medium to large shift? What about the probable attitudes of purchasers of small cars? Small cars are probably more sensitive to change, and also the smaller cars are inherently less safe. NHSTA had evidence about the acceptability of passive restraints in smaller cars, but the data might not be the most generalizable since it was a limited study on particular styles of vehicle. There was no indication that the manufacturers of moderate and large cars were providing similar measures and getting similar results, so there was some indication that there was a market where this was succeeding, but how much can we extrapolate from this? Note that there was also an societal shift to smaller cars. Discussion Takeaways: There is evidence of the struggles between professional safety-oriented staff and political actors. Page 409: Where is regulation going statute that congress adopted? Its not only a general cost-benefit analysis but also concerns how smaller businesses will be effected, and whether one can think of ways to alleviate that burden. Page 410:


Concerning confidential submission of information, there is a requirement for substantial justification. Note that Reagan wouldnt have been a fan of this: he would have preferred a simple stamp of some kind, for instance, marking a document as confidential. Additional Note: at the time these regulations were in process, there was only location at which citizens or others could view comments and other documents. Question: The date for filing comments has passed. You find a comment full of error and likely to confuse and prejudice the agency. What do you do? What are your opportunities to challenge that comment? 1. You can still file comments, the Agency simply cannot guarantee that they will consider them if submitted after the filing date. 2. Notice how different this is from the judicial process. For instance, calling a judge after a trial to submit more information would not likely garner a positive response.

55 Weve now seen the prehistory of Standard 208; the capsule summary in the Federal Register posted on Coursekit provides a first glimpse of the hotly debated provisions. P. 774, Note 1: It was in the early 1970s that NHTSAs role transformed from explicit, detailed rulemaking that was always out of date and to more adaptable and expansive standard-setting not command and control behavior but dirigisme, establishing firm expected results and allowing affected parties to find their own way to solutions. Its much better to tell people this are the results you need to achieve theyll do it with more efficiency, continue to make changes, continue to update and remain up-to-date. With standards come guidelines: staffers produce guidance documents and numerical targets to provide more detailed metrics of success. The idea of guidance is if you can reach these results, you know youve satisfied our standards. Unlike Rules, these guidelines dont have to be signed off on by the Agency Head. Note in Standard 208 that the target was a standard but many rule-like objective criteria were provided to measuring achievement of the objective, a standard-rule hybrid model. But these measurement rules are susceptible to subjectivity, and the crash-test dummy testing standard of Standard 208 was struck down in Chrysler Corp (1972). [Interlude: Nixon Oval Office conversations] What is the Presidents proper role in rulemaking? Was Secretary Volpes resistance to Erlichmans instructions John, Ive got a job to do! politically legitimate? Consider that the President is the only nationally elected politician, and he must take national concerns the health of the auto industry, car prices, GNP and balance of trade into account. National concerns can be in tension with agency priorities, however well-intentioned and soundly proven to have beneficial consequences. Moreover, the DOT Secretary is a political appointee; had Erlichman called a career data analyst and pressured him with Presidential authority, we might expect some proper pushback. Political appointees should follow orders. Then again, the Secretary has his own responsibilities and duties, including being professionally accountable for the successful implementation of Agency priorities. The cabinets incentive structure is set up so DOT Secretary can push back. It appears from the transcript that Volpe pushes back on a technical ground rather than political it would seem the public should be able to tell it apart but that is not the case. It seems evident that Volpe knows the political context. So maybe the President shouldnt expect instant yes-sir submission, although ultimately the decision should be his. Or should it? From the transcripts and tapes, this didnt appear to be a rational process of decision-making. But prevailing conditions and societal themes (inflation, preserving competitive advantage, Japan) gave considerable weight to the automakers concerns. It is definitely plausible that this it is beyond supporting my friends, watching my enemies. Nixon admits he didnt actually know the rulemaking procedures; if he isnt familiar enough with the process, should he be peremptorily intervening? Should be defer to his Department Secretary, to whom supervisory authority in this regard has been delegated? He shouldnt be expected to know the arcana of every agencys internal procedures. Also, to be fair to Nixon (shudder), this conversation occurs at the cusps of cost-benefit (C/B) agency concerns: do they have hearings on these sorts of things? do these things refer to C/B? Over the next few decades, we see a trend towards ensuring that agencies engage in rigorous analyses of cost and benefits. Lack of familiarity with rulemaking also provides Nixon the cover to made promises to pursue automakers interests without making firm commitments. So what if Sec. Volpe had been in the room? Would we be more comfortable with the outcome, and might it have been different? On one hand, it might give an appearance of impropriety; on the other, it might encourage an adversarial, court-like proceeding giving Nixon a chance to engage both sides of the debate instead of hearing one-sided advocacy. Should we expect a President to hear all sides before making a decision, including inviting Ralph Nader into the Oval Office? Is that realistic, or democratically desirable? Revisions to 208: Notice 13 (Oct. 1, 1971) introduces interlock devices; later, Notice 16 (Feb. 24, 1972) mandates them and sets forth passive protection installation timetable, which was challenged in the following case.


Chrysler Corp. v. Department of Transportation (1972) Note the numerous plaintiffs besides Chrysler: Jeep, American Motors, Ford, and Auto Importers of America but not GM! Perhaps they enjoyed a competitive advantage (it was their dummy NHTSA embraced), and were better equipped to be in compliance. Chrysler et als Challenges to Standard 208: 1.) The 1966 Automobile Safety Act does not confer authority to require automakers to develop new technologies. Judge easily quashes. 2.) The Act also mandates that standards be practicable, and effectively ordering that airbags (an insufficiently developed device) be installed is not practicable. Quashed. 3.) Air bags are less dependably safe than seatbelts, thus the Acts requirement that the standards meet the need for motor vehicle safety is not met. Quashed: airbags enhance driver/passenger safety. 4.) The terms of revised Standard 208 are not objective, because the crash test dummy specs provided arent detailed or consistent enough. Objective here means replicable, demonstrable results with compliance assessed by measuring instruments. a. Objective criteria for dummy neck flexibility, thorax dynamic spring rate, and design of head dont exist. b. But quantitative requirements are set forth: numeric targets. If automakers can match the targets and have performed their tests in good faith, doesnt that meet the objectivity requirement? No. Objective means consistent in detail and design. c. In what ways did NHTSA take account in advance of the possibility of test result variations? The opinion notes that as long as an automaker shows the agency that they used the SAE dummy in running the test and got the necessary results, that is compliance even if DOT running the test will get a different result. The court emphasizes NHTSAs having discretion over accepting test results as detracting from the objectivity of the standard. Chrysler Corp. prevails on argument 4; proceeding is remanded and Agency is instructed to provide specifications for test devices in objective terms. Agency uses GMs dummy as new standard. p. 790-792: you learn that GM is capable of going forward with the test dummies. Additionally, note that the standard of implementing interlocking system caused chaos in Congress. Letters that came in illustrate some of this and Mashaws book also includes the misguided regulation of school buses: the same discussion today of govt forcing childless consumers to pay for the cost of protecting against parents with children from getting hit (rear view mirror rule). In the wake of Chrysler Corp., Fords DOT Secretary Coleman holds a public meeting in June 1976 to solicit public comment; decision issued in December backing away from mandatory requirements and endorsing public-awareness campaign on seatbelt use. January 19th, 1977: Sec. Coleman publishes rule maintaining standard as it was, allowing Pres. Carter and incoming Sec. Brock to do with it as their policy priorities would direct. Carters NHTSA Head, a former Naderite, pushes forward with mandatory passive restraints. DOT produced a 17-page rule, much of which was concerned with crash test dummies and putting airbags again on the agenda. Carter was voted out, and Reagan in, leading revisions to 208 to proceed down path to deregulation. NHTSA Final Rule (Oct. 29, 1981): requirements rescinded. Whats the rationale? Is this a purely political decision cloaked in technocratic rhetoric and obfuscatory reasoning? Q1: Are you surprise by the outcome? Did you find it well supported? What were its strength and weaknesses in relations to judicial review that might be forthcoming? Rules rationale places heavy weight on automakerss business decisions: theyre all opting for automatic belts instead of airbags. Consumer choice justification for proceeding with mandatory passive restraints is undermined. Automatic belts may simply be used at same rate of manual ones, eliminating safety benefits while imposing costs. NHTSA also notes as support the lack of public support for these passive restraints leading to manufacturers overwhelmingly going the way of the safety belts.

57 Public Backlash: Public resistance was severely underestimated in the case of interlocks. The agency is doubtful that the public will accept further mandatory safety features: if they make changes now, backlash and underuse of seatbelts may get much worse. Essentially, the argument seems to be avoiding the C/B analysis by making assertions about manufacturers likely actions and the public backlash. Q2: If you were conducting genuine C/B analysis, would there have been other alternatives to consider and would the C/B likely have come out the same way? Here, it would appear that the C/B is that the cost increase would make cars safer but people wont be buying them we are imposing unnecessary cost on the auto industry. NHTSA did C/B for the detachable seatbelts and said there would be no net gain. NHTSA could have mandated airbags; also they didnt have to give the option between airbags or seatbelts either. Could have done CBAs for airbags, but didnt because manufacturers werent going to implement them anyway. But the Agency has authority to combat competitive-disadvantage collective action problems like failure to adopt airbags, right? Isnt that one of the reasons for having an agency? NHTSA also cites the congressional action rejecting the interlock system to dismiss the whole idea that it is politically achievable to have similar action (i.e., mandating airbags). Q3: How does NHTSA deal with the Rabibt and Chevettes issue? Arguments focused on the outcome of the study not being a reflective of the general population: it argues that it is not a representative population cars already had non-detachable seatbelts, the one at issue are detachable ones so the benefits would likely go down because people wont be wearing them as much. Also, the study subjects were volunteers who sought the small cars anyway so it was a self-selective group and the results are skewed. Coda: differences between Rules and Statutes. The Final Rule document is really not at all like a statute: this is in good part a function of anticipation of and role of judicial review in agency actions. The Rule contains its own arguments for itself


If and only if agency has acted within legal framework o Intelligible principle Agency lawyers, to the extent they think/know their work will go to court, will be consumed with capacity to demonstrate legality of what agency has done o This is a big shadow effect of delegation CAFE standards on pg. 434 o Seeking to determine whether NHTSA can make retroactive amendment to fuel economy To read in order to allow retroactivity, maybe focus on time to time as when you can change the standard, implying after the model year, and any further providing broadness, meaning even previous years o Why 18 months for more stringent but not for relaxations? You dont have to do anything to relax your standard, but you do to hit more stringent o Definition of rulemaking in APA says instrument, general or particular, of future effect o Arguments that NHTSA uses Very specific provisions in the act about when penalties can be changed, and says only to the extent Fairness issue to manufacturers that did meet standards Undermine credit system Undermine incentive to comply with standards, since youll obviously change them Manufacturers here didnt even ask before the model year, but waited in until 1987! o Argument of GM and Mercedes Maximum feasible should be based in part on how the market is behaving NHTSA did reduce the standard (to allow for SUVs) so feasible under a3 should be interpreted more like actual. Gas prices have come down, so feasible to have worse fuel economy o Well, only 2 manufacturers are opposing here, so seems like standard was feasible to most of the industry o Is NHTSA interpreting/reasoning similar to the way a court would? Less reliance on canons Cites conference reports like court might, but probably relies on them more Seems more persuaded by policy requirements than court likely would That all makes sense and is consistent with their congressional charge Nourses decision-theory present? Seems like NHTSA is going on conference report about being allowed to decrease up to beginning of model year o In conference report, so cant be substantial change o The house had 18 month lead for only increasing standards, the senate had lead time for reducing or increasing standards; conference got rid of the reduction but didnt speak to it, so couldnt have been substantial D.C. decision on this did find ambiguity and went to step-two in Chevron Suggests that agencies better-able to implement decision theory and more versed in legislative history, which makes perfect sense Tendency according to Scalia would be to say that the words which made it into the statute are the only ones that matter. The agency doesnt interpret the silence of the report to indicate the legality of retroactive standards. If NHTSA had been willing to amend the rules, it would have been relieving GM and Mercedes of administrative burden o Simpler proposition than increasing burden retroactively Probable that agencies do not communicate with congressmen after enactment due to incentive and power-sharing reasons


o Less accountability and reliability Agencies do from time to time hear from committees what they claim to have meant Chevron is most cited admin law case of all time o Totally shocking to Supreme Court o How should an agency lawyer understand this opinion? What does it say to someone constantly responsible for demonstrating legality of what his agency has done? Take two prong approach of first seeing of statute is clear, and if not, then show reasonableness? Make argument that it is clearly in statutory scope, and also that it is reasonable? What if you cant make the argument that it is clearly in the scope of the statute? Show that the action is within the authority that the statute has conferred o Consider from a courts perspective what decisions must it make? Did congress express a clear intent? Is the agencys interpretation reasonable? o Footnotes 9 and 11 Judiciary is final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question had arisen in a judicial proceeding o Court in charge of saying what statute could mean o Court decides how much room the statute gives the agency o Suppose judge reaches conclusion that this much room is given to agency Agencys judgment as to what to do with that room given At this point, deciding if agency reasonably exercised authority that judge has decided they have o Take with a grain of skepticism Strauss view that this is a simple decision, as it is apparently controversial Part of problem is Stevens language which talks about clear congressional intent o Imagine that there are some mandatory and some permissible definitions Definition of employee, for example 9-5 punching clock is mandatory Independent contractor is impermissible Some situations are up to NLRB Chevron says we are going to presume that when there is intermediate room, Congress delegated the authority to the agency Hurst principle in Strauss words o How does existence of agencys interpretation affect courts evaluation In Skidmore, dealing with agency without force of law, but influential in giving guidance on meanings Fair Labor Standards Act administrator had an opinion about what the statute ought to mean o Court says concern for this type of opinion will be based on its capacity to persuade When court is deciding for itself how much room the agency has, it might give weight to agencys view of how much room it has for itself o Statutory issue in Chevron is question of what stationary source means o If deciding whether or not to give agency deference when deciding your own interpretation, and agency has flip-flopped, what would you think

60 Every court has said it has hurt the agencys deference at this point Now, past first step of Chevron, flip-flopping not prevented Issue is whether this is a reasonable act o EPAs initial determination of no bubble concept came from D.C. Circuit decision Imagine in Erie terms, 2d Circuit decision doesnt bind NY courts If job of acting in a realm has been given to an agency, and an appeals court decision has been made falling within that realm, is appeals court decision binding on agency? Pretty hard to follow appeals courts as a national agency Besides, if you believe this is the agencys job, no reason appellate courts have any more authority over the issue than the 2d Circuit over New York courts To the extent that the first courts decision is about the room the agency has at all, then the issue for the Supreme Court is whether the appellate court was right or not To extent Supreme Court sees D.C. Circuit decision as one about the agencys decision, issue for any court is just whether the agency did it reasonably, not whether the court would reach the same conclusion Mashaw chart indicating differences in agency and court interpretation is strong o What does pay particular attention to the strategic parameters of interpretive efficiency mean? Kind of incentives that approaching problem in particular way will give to those that regulate Incentives that Chevron gives to agency orders o Will start with text, might try to show breadth of possibilities, using more judicial interpretation methods while making that room Might want to be implicit when using judicial tools to avoid war of words Decision theory might help to help explain things that judiciary might have found ambiguous When you encounter Chevron in casebooks, basically everything from II to VI or VII is omitted o May be unfortunate, since it deprives of demonstration of how hard the court works with statutory tools to reach conclusion that Congress left this to the EPA Once in litigation, agency lawyer likely to try and fight for as much deference and space as possible


Victoria Nourse Paper Presentation A Decision Theory of Statutory Interpretation Introduction Chapter of a forthcoming book entitled Misunderstanding Congress that will detail how courts have misinterpreted statutes by failing to understand Congress own rules Trying to reduce the cost in positive and normative terms of using legislative history o By offering a rule-based approach that constrains judges from picking and choosing their friends in the record Attacking the idea of legislative intent o o Really a process of decisionmaking Intent is a heuristic for judges about judging to remind them that Congress makes the decision about legislation, rather than the courts Positive political theory has contributions to make in understanding the rules by which Congress operates, but their game theory and signaling ideas require modification before courts could employ them

Five key principles: (from draft article) o o o o Never read legislative history without knowing Congress own rules Read legislative history as a reverse-sequential process The best legislative history is the most proximate to the textual decision Structure induced misunderstandings: Congress rules may create ambiguity for courts but not for Congress o Never cite legislative history without knowing who won and who lost the textual debate

Student questions Does the rule-based argument mean that Presidential signing statements are a key element of legislative history, since Presidents signature is the final step to becoming law? o o Is a rule, so that indicates it would count But difficult to pierce the veil to see if Congress acquiesced (as in the election year case about disclosure we have discussed)

Is the presumption that Congress knows and follows its own rules rebuttable in particular cases? o Not rebuttable in cases where Congress broke its own rule Holding Congress to its publicly stated rules


But if the application of a rule is ambiguous, even to Congressmen, then the presumption that Congress correctly applied the rule may be rebutted

Is the use of legislative history anti-democratic? o A major worry about committee reports since not voted on by the Congress, as textualists have pointed out o Less of a worry for conference reports, since they are voted on and constrained to where the two houses disagreed

[unsure of question that elicited the responses] o o o Hart & Sacks purposivism makes sense as an instruction to judges about judging Not as a solution to Max Radins point that Congress lacks a true collective intent Breyer may be a purposivist, although moving away from that position

How would her view respond to the idea that statutes should be seen as deals? o o Have to find the deal in the text Similar to the textualist view

[unsure of question that elicited the responses] o o Her view is more efficient and normatively more attractive than current approaches Gives the judiciary a rule it can coordinate on (in response to Vermuele critique that courts cannot coordinate on using legislative history or not, so incentives to Congress will be unclear) o Nourse is not a purposivist Statutory history = evolution of a bills text, e.g. through amendments Textualists dont understand statutory history, but they use it anyway So they should learn more about Congress rules

Prof. Strauss: Is the account of TVA v. Hill trying to have it both ways? o o Most frequent criticisms of the paper are about this case Courts often say appropriations are not legislation and not deliberative, whereas authorizations are o o o o People in Congress know thats not true Need appropriation to achieve any authorization that costs money But appropriation cant authorize and authorization cant spend So not ambiguous when theres silence in either bill on those points


Many of us thought this paper was correct and how courts already interpret statutes. Why hasnt that been the case? And how could it become the case?

Law schools dont teach legislative procedure as they do civil procedure


Notes (2012.03.26):

Todays class focused mostly on Yucca Mountain-type issues General questions: What is the alternative to *a+ series of such conservative assumptions can overstate the mean probability of an unfavorable outcome by several orders of magnitude. (Viscusi, Fatal Tradeoffs) Viscusi is for taking risks (note: he is one of the tobacco industrys leading scientists) The precautionary principle: When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even though the threat to harm is not fully established or understood (scientifically) However, this principle does not answer the question of what is an acceptable risk Should we analyze high-frequency, low-intensity risk and low-frequency, high-intensity risks very differently? Do we want to overestimate risk? How many orders of magnitude do we use? (The standard is two). Regulatory agencies tend to have [overly?] dramatic regulations of low-frequency, highintensity risks One of the reasons for this is because of the risk-assessment heuristics we use on a daily basis Perfect example of this kind of risk can be seen on page 729 of the text. One of the regulatory challenges is that the regulatory agencies must determine what the possible risks are, including [confluent] events, no matter how improbable One weakness of Ropeik & Gray is that the research is not done in a vacuum, it is a piece of a larger body of scientific work, and studies have a cumulative effect. Nuclear Waste: [Map of nuclear waste in the US, note there is no marker in NV!] How do you get all of the nuclear waste to Yucca Mountain? Most of the roads and railroads that go to Yucca Mountain go through Salt Lake City; there are serious problems with getting other States on board with shipping all of this nuclear waste through their borders What kind of risks would its transport entail? How can you control such risks? What would climate change do to the weather patterns of Nevada? Will there be more rainfall which would affect the riskiness of storing nuclear waste there? Through the 1992 Energy Policy Act, Congress required the EPA to establish site-specific standards for a repository at Yucca Mountain The National Academy of Science said that the 10,000 year timeline was insufficient since nuclear waste had a half-life of well over that time period How much space is the EPA given to go against or ignore the NASs advice? Why would Congress want it to work in this way? Note: the authors dance around exactly what happened between the NAS (their recommendations) and the EPA Administrator. There is some space because the EPAs decision must be based upon and consistent with the findings and recommendations of the National Academy of Sciences*.+ Congress could have been much more explicit if they wanted to force the EPA to take the position, but this was an attempt to divide science and policy. It may be that Congress wanted the EPA to take the NASs scientific findings as one input as to weigh in making their final decision DC Circuit said EPA could not just throw out the NASs recommendations There are trans-scientific considerations that go into making the recommendation on the part of the NAS NAS thinks that the models going out to 1,000,000 are fine


The peak risks of radiation, which are the risks that to be accounted for, happen after 10,000 years; the regulation should be based on the peak risk time In class exercise: How do these concepts relate to regulating the transportation and storage of high level nuclear waste products? Risk: you can calculate risk, and can know the possibility of certain states of the world occurring (the difference from uncertainty). Computer systems going down and disrupting the cooling system The risk of a train derailing in an urban area carrying nuclear waste to Yucca Mountain Failure rate of containment vessels Quality of material assessment: titanium, steel and other materials used in other nuclear storage facilities and power plants What are the characteristics of the waste? Wwhat are the impact of its radiation on the substances used to contain it The amount of radiation that employees are exposed to; risk of accident in the processes to get the waste into the final storage units Uncertainty: more like hazards that are bounded within a range. The more we can identify the range, the more we can talk about uncertainty as risks, and the more we can control it/them. No specific causal link between the thickness of walls and the escape of radiation Climate change; tectonic shifts; weather dynamics Political shifts, defense against war time attacks or terrorist attacks on Yucca Mountain Ignorance Cosmological shift Future technologies which could make nuclear waste a moot point (complete decontamination techniques or a use for nuclear waste) Risk assessment Look at available failure rates, etc. Risk management How thick the walls will be and what materials to use in construction Precautionary principle Epidemiology Studies of the aftereffects of other nuclear crises (3 Mile Island, Chernobyl, Hiroshima) Studies of the effects on workers at other nuclear storage facilities Difficulties knowing the levels of exposure; comparable data sets Toxicology Lab studies of the effects of radiation on animals We dont experiment on people, there are extrapolation issues Dose response curves-- how do we know which model to choose? which is the line of best fit? general tendency is to assume there is no safe dose. how can you make decisions if you know there will always be a certain amount of disease/cancer/injury? Statistics Failure in operation and management Risk of seismic activity People who live within three miles of a power plant Airplane pilots, people who live at altitude Growth in the production of nuclear waste Trans-scientific considerations What is the acceptable level of radiation to a human being? Closely associated with the distinction between risk assessment and risk management


Those assessing the risks [should] try their best to pass on the uncertainties that exist in the scientific methodology Take into account policy considerations One additional consideration: what the role of judicial review is in terms of determining the adherence to science

*once you identify things you are ignorant of, they are uncertainties, not ignorance. *differences between epidemiology and statistics? Epidemiology is limited/specific. Observing human populations who have had exposure to various things. This was the hardest issue on the NRCs plate 35 years ago.

Wendy Wagner: Burying Trans-science in Science (what she means by the science charade) Many times, there are policy judgments made within the decisions necessary to do scientific research The abuse is not always intentional.. maybe what Congress did with the EPA & NAS was intentional, maybe what the NAS did in reaction to Yucca Mountain was unintentional Premeditated- when the problem comes from the top and policy makers try to hide their judgments behind the veil of science She has also written on the suppression of scientific evidence or findings (bending science) If the EPA admin has data that could support levels from .7-.11, how does she report her conclusion about that data when shes aware that at least certain ways of expressing uncertainty are very likely to produce a reversal from the Court of Appeals?

Note the case: Whitman v. American Trucking Associations, where the DC circuit has said the admin hasnt showed how she made her choice. Too little and too much is not a standard. But Supreme Court said yes it is. Institutional factors at work.


Recent history shows steadily increasing intensity of White House interest in whether regulations are costbeneficial, and that agency priorities are chosen on the basis of cost-benefit. OIRA presides over an elaborate analytic structure - which we will explore later. Today: the nature of cost benefit analysis as an exercise. Slide 1: annual costs and benefits of EPA rules finalized under the Obama administration Evidence of the range of estimates to costs and benefits of new EPA regs under Obama - each of which had appeared to be cost-beneficial at the time of adoption (prospectively.) Statutes now require a yearly report by OMB on the cost-benefit measurements for each reg. Of course, each figure is subject to the perspective of the agency that develops it (OMB vs. Chamber of Congress figures, etc.) Should this be an important metric? Sunstein reading: regs which are marginally higher in cost than in benefit ($6 mil. vs. $5 mil.) may still be worthwhile - there may be a beneficial distributive impact (see also Matt Adler review Wellbeing and Fair Distribution.) This distributive fairness is hard to measure, though it's less an argument for discounting CBA than for a different approach to it. CBA produces a utilitarian calculus, an easy heuristic for comparison of costs and benefits (primarily measuring benefits based on lives saved and possibly also including damage [to lives and property] prevented) - but how can you measure costs versus benefits aside from measuring them in dollars - Possibly you can introduce a discount for the decreasing marginal utility of wealth. Wage premium - two jobs, roughly comparable in all aspects except for a marginal difference in risk and a marginal difference in pay - the riskier job pays better, and based on this comparison you can derive the risk premium (differential.) - But people are always going to need a job, and jobs that are available will be taken. - ACIPCO - pipe-fitting company with a solid safety record with large degree of employee benefits, amenities and profit sharing - vs. McWane - one of the worst industrial safety records in the business. And yet... ACIPCO pays higher wages - you can't calculate a risk premium between these two companies. This is what Sunstein is talking about. Sunstein now runs OIRA, since 2009. When he took over there was a discussion of modifying the basic EO under which OIRA analyses were conducted (EO 12866; September 30th, 1993). OMB even issued a public notice-andcomment process. Finally resulted, in January of 2011, in new EO 13563 which supplemented, rather than modifying, the old EO. Inter alia, it lists approaches for maximizing net benefits (1(b)): potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity. This will purportedly soften the OIRA review process, but this apparently has not yet happened. Hypo, based on real NRC problem: a few millirems of radiation are released by operating nuclear power plants, which inevitably reach the surrounding population. Existing standards set a level for release at plant boundaries that large-scale epidemiological studies suggest creates no significant cancer risk for any person living off-site [the current health standard is ~3 millirems]. However, if one were to integrate that very low dosage over the whole of the population exposed to it, one would often reach a figure equaling several fatal doses of radiation. These "statistical deaths" could be reduced by further reductions in radiation emissions from the plants. - Populations affected by these releases (and hence the number of such "deaths") vary widely from plant to plant. - How should the NRC calculate the expenditure that would be warranted to make any plant's emissions "as low as reasonably achievable"? - This assumes a linear dose-response curve increasing in damage (risk) from the level of 0-dose - this is the most conservative dose-response curve to assume in situations of uncertainty. Should this level


of exposure be compared with the normal level of background radiation? Does this require the assumption of accumulation of risk within the exposed populations over time? Can we find the reasonable cost that a utility should be made to pay to reduce the exposure of its surrounding population further (this obviously depends on the amount of surrounding population - plants surrounded by higher population would thereby have to spend a greater amount on safety.) - We also cannot, for every cancer case in the surrounding population, differentiate between those caused by radiation exposure and those from all other causes, especially due to the latency effects of exposure. Rule utilitarianism vs. act utilitarianism - is it economically practicable/efficient to set a different exposure standard for each plant? Should OIRA ensure that analyses are conducted based on marginal cost vs. marginal benefit instead of total cost vs. total benefit to ensure the greatest possible social utility? This would ensure positive net social utility. Another issue: CBA is typically conducted at the end of the rulemaking process, after significant resources have already been spent on the new rule and the only remaining discussion is dickering over the individual details of the rule as it stands. - EO 12866: 4 requires annual submission to the White House of the plans under consideration by each agency and their rough estimate of the benefit of those plans; 6 then requires CBA of to-be-enacted rules. This allows for top-down priority setting by the White House in order to make sure that the development of rules is conducted with cost-efficiency in mind. But 6 takes the much larger role in rule development than 4 - this seems contrary to where the benefits of CBA are to be gained. Strauss's dead horse. Economist chart: $mil. in cost per life saved - from $0.1 for Child Proof Lighters (1993) and Respiratory Protection (1998) to $100,000 for Landfill Regulation - stats selected from larger table. But this form of analysis will naturally treat different communities differently - communities will suffer from morbidity and loss of productivity for being located near a polluter in a way that won't be fully reflected in CBA. How do you make sure all of the ancillary considerations are taking into account - and once you start including them, where do you stop? - Economists in the regulatory agencies typically take on varied fields of expertise, and cooperate through/with OIRA and OMB in order to share that expertise toward producing a pretty objective (though obviously not completely objective) process. - OMB Circular A-4 - September 17, 2003 - John Graham's work early in the Bush Administration, which has not yet been changed or overruled; there is a stability and professionalism in this process continuous through the upheavals from each administration to the next. The process is pretty reliable and not as political as one might suspect (Adler.) Continuing relationship and mutual understandings are an essential element of the work of regulatory policy officers, as they themselves have indicated. - Obama has reverted to the Clinton-era policy for agency officers who are appointed and work within and report to their agencies, rather than being dislocated White House employees. For analytic purposes, the list of possible costs and benefits is highly variable depending on context, and as Ackerman and Heiserling indicate, these figures suffer from various measurement issues. Cost measurements come from the industries themselves; as one would expect they are generally inflated by a factor of 2. Not necessarily even for malign intentions, but due in part to the simple fact that regulatory rules force the development of new, lower-cost means for achieving regulatory targets. So should we simply discount cost estimates developed within industry - won't this lead them simply to inflate their estimates even further? Therefore, EO 13563 - it's essential to consider the immeasurable, though as yet there are no real alternatives to CBA as a method for balancing costs and benefits.


- Even CBA at its most methodological is subject to choices of parameters (value of statistical lives; discounting to certain lives, such as those of the elderly; general discounting rate) which similarly affect the outcome of the analysis as do choices of trans-science. Discount rates: what is the role that they play? 1) For an individual living today, what is the value of this life ending today versus ending ten years from now? Are these equivalent values? Probably not - once we determine that they are not, how exactly do we assess the difference in value? 1a) The immediate accident tends to be less burdensome (less expensive) than lingering disease 20 years from now. 2) 20 statistical people dying today versus 20 statistical people dying 20 years from now. Can we discount this in the same way, or should we inflate the value of those lives by 20 years, and then discount to arrive at the same value? Is CBA the best form of decision making? - It is an inherently conservative calculus - cognitive biases value money in-hand to a greater degree than potential speculative gains. - As well, well-documented and valuable regulations (easy regulations) will be issued over those which are less understood and inherently more difficult. Maybe this is why the tougher issues should be left to Congressional deliberation; but Congress suffers from some of the same biases as do the agencies will the political costliness and complexity of major issues (e.g., greenhouse gases) mean that neither Congress nor the regulatory agencies will ever be able to handle them effectively? p. 498 - Sunstein vs. Ackerman/Heiserling - what are they really disagreeing over? - Sunstein recognizes the problems of CBA (distributional problems, unquantifiable problems) yet sees it as a valuable jumping-off point for policy analysis - Ackerman/Heiserling argue that analysts attempt to list and take into account the unquantifiable elements, yet the presence of CBA precludes those elements from consideration. p. 493 - a specific example of an agency (NHTSA) attempting to deal with those disparate elements and deal with the question of finding a specific discount rate. - Unsurprisingly the agency ends up using and defending the discount rate they were using to begin with they set the arguments of either side (those for increasing or decreasing) opposite of each other, along with studies and scientific evidence to support those arguments, and ends up compromising by finding their way back to their ex ante chosen rate. Is this a premeditated scientific charade? Are they only using the scientific arguments to cover and legitimize their underlying decision? And how did they end up deciding on one rate after discussion of two separate rates - an implicit weighted average of the amount of capital in the car markets and the comparative cost of that capital (used cars and new cars.) And, as demonstrated by the citation of Mercatus studies from the 1980s, which themselves studied the double-digit interest rates of the Carter Administration, interest rates will inevitably change over time.


Political Analysis Public attitudes and distributional effects o NHTSA didn't require airbags because they were unpopular o They could save more lives by ignoring the public and what they want o Sometimes if people are so irrational, they may prevent the policy from having benefits (not using/ripping out the seatbelts) Political Preferences o EPA emission standards President is working very hard to develop an international approach, so the EPA should not go ahead and create a unilateral policy But the CAA does not authorize the EPA to consider foreign policy considerations Are they ignoring legislative intent under pressure from the executive? But they are allowed to consider uncertainties--they can't form a policy if circumstances will change Said that congress doesn't intend them to regulate Congress explicitly told them to regulate emissions that harm the ozone layer, but didn't mention global warming Prof. Mashaw said that agencies should pay more attention to legislative intent than the courts do, which is what they're doing here MA v. EPA--Just because congress didn't say anything about the EPA regulating car emissions doesn't mean that they can't Here, Justice Stevens, differs from his dissent in Central Bank of Denver He says he's puzzled by the EPA's decision to say that authorizing regulation for ozone depletion disallows regulation for greenhouse gasses o When listening to the president, "there are good reasons and real reasons" If congress is vague, it can ask the president to help define it's responsibilities It should be able to come up with its own reasons for doing so other than "because the president said so" Agencies are omnicompetent--they are very competent on one issue If we put omnipower on an agency that's omnicompetent, it gets too big It's better when an agency has a very focused role--forces them to justify their actions within the language of a statute Does this mean that agencies ought to hide their true motives? Yes The alternative is recognizing extra-legal power The People Behind the Tools o Team model o Hierarchical model o Outside advisor model Sometimes they hire real outside advisors For the purpose of this article, he means outside advisors from another division within the same department OSHA used it as a substitute for renegade teams, whatever those are Probably a problem with republicans--the agency is supposed to regulate but the republicans hate regulation Outside advisor model allows for a more top-down approach, and gives more power to political appointees o Adversarial model--bureau vs. bureau


Guidance o Tends to be more guidance documents than regulations o Lax approval process o OIRA encourages engaging with the people who will be guided when producing guidance documents, but the procedure is much less formal than for formal rulemaking o There is procedure but it's limited If it's not published in the federal register, it must be made publically available Used to mean in agency reading rooms Now available on the internet o These days, rules and regulations tend to take the form of standards--tell you what to achieve rather than how to do it Guidance helps tell us how to do it o Do we get increasing detail as we move from statute to regulation to guidance? Yes Should guidance be identifiable as fitting within the framework of a statute? Might raise questions on the adequacy of the statute in establishing such a framework It's easier for the court to say that the agency needs to go further in creating regulations before relying on guidance than to tell congress that they need to go further in writing statutes before relying on agency regulations o Ex. General Requirements [for safety regulation in aviation] statute "Regulations in the interest of safety for the maximum hours or periods of service of airmen"-basically gives the administration the freedom to do whatever they want in this area In response to this language, the FAA has created regulations for time periods But how do you measure the time periods--what if the flight is delayed on the runway? Do you count the time between when the plane leaves the gate and when it takes off? Do you count the time between when it was supposed to leave the gate and when it actually did? FAA responded to pilots that that time must be counted--actual time rather than expected time Is it appropriate for the FAA to do this by guidance? Is it amending its rule without notice and comment But the Administrative Procedure Act says interpretive rules don't need notice and comment But it's unclear whether interpretive refers to how they interpret their statute or how they interpret their own rules Might make sense to only allow the former Congress has an incentive to make statutes as detailed as possible to avoid giving away too much power An agency would have an incentive to make the rules as broad as possible so they can interpret them however they want o To what extend are we bound by guidance Courts, agencies, and regulated entities are all bound by statutes and regulations, and no one is bound by unpublished circulars Regulated entities are not bound by guidance--the point is that guidance is only one way of meeting the required objective Courts may be bound so long as the guidance falls within the framework of the regulation Agencies may not be bound They frequently put disclaimers on guidance These documents cannot be enforced against the agency They are not final agency actions so they cannot be reviewed Appalachian Power v. EPA--binding when It treats document in same manner as legislative rule

72 o

Bases enforcement actions on the policies or interpretations formulated in document Leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document

CPS vs. FCC FCC was more guidance-like--contained examples of how to deal with issues in specific situations The existence of that document did not change how the rule was enforced CPS was more focused on changing how the rule was enforced Contains a strict rule--more than just guidance Structurally sound containment for lions and tigers Guidance: Won't punish if fence is 8 feet or higher Okay Strauss says agency should be bound because there's reliance, but contemporary scholarship says no Staff manual/guidance: Will prosecute any cases that does not use a fence that is 8 feet or higher Okay, since it's basically the same as the first Administrative accusation or finding: Defendant violated "structurally sound" containment by using a 6'6'' fence Administrative accusation or finding: In light of the requirement that fences must be 8-feet or higher, the 6-foot fence is not structurally sound Really bad, because the only justification is the guidance--treats the guidance as if it were a rule Why challenge guidance--can't agencies just turn around and make a rule? It would delay enforcement for months if not years Might not be cost-effective for the agency to go through the whole notice and comment process


Notes: 04.04.12 Any more questions on Guidance?

Guidance is popularly seen as an escape from rule-making, and it is questionable for this reason. The DC Circuits negative reactions are very much driven by these perceptions. If you look at usage in the administrative state, as long as they fall sensibly within the envelope of reasonably well-developed situations, or if there are situations that do not fall under ambit of the rule, it is sensible to use them. As long as the agency hasnt promulgated a deliberately vague rule for the purpose of passing guidance/interpretations w/o the notice/comment procedure, or the guidance is beyond the scope of the rule in question, the guidance is probably valid.

Ch. 5(F): Other Descriptions of Agency Behavior Professor Wilson: Benefits diffuse (general public) Costs diffuse (general public) Costs concentrated Majoritarian politics Entrepreneurial politics Benefits concentrated Client politics Interest group politics

Recall from statutory formation (concentration of costs and benefits) What are the implications for administration? Client politics and entrepreneurial politics both involve unbalanced political forces; tend to be unstable; tend towards capture; may require greater supervision to ensure that they stay on course. Usually dominated by groups that have the most to gain and lose. Interest group politics and majoritarian politics maybe more stable? Easier to see how they tend to be free of external political force and do not lean towards capture Closer inspection of examples reveals mixed characteristics (e.g. FCC, ICC) FCC says they represent interests of the public, but at times it may be a pretense. One of the ways of getting out of client or entrepreneurial box is the recognition of standing by the courts. Maybe FCC falls under client politics when it comes to the broadcasting industry, but is it client politics when it comes to on-air versus cable tv? On-air v. Pay-per-view? Landline v. wireless communications? Now it begins to seem more like cost-concentrated and benefit-concentrated before competing groups in the same agency. ICC, at least in respect to safety responsibilities, was an agency that imposed concentrated costs on the railroads in order to produce diffuse benefits to the public. These concentrated costs exposed it to a greater possibility of capture. NHTSA is supposedly an example of entrepreneurial politics (Nader scandal provided impetus for organization of diffuse benefits against concentrated costs; presidential administration also conducive)


Arent costs of compliance passed on to consumers, making this an example of diffuse costs
as well? Does this mean concentrated industry costs are an empty subset? Might depend on the degree of price elasticity or the size of the consumer group What if NHTSA requires a recall as opposed to an engineering change? Up until the amendments of the mid-70s, NHTSA was an agency that created safety standards, but mandatory legislation has made recalls much more important than they have previously been. Recalls work to protect consumers from loan and safety hazards, and generally benefit only a small subset of people. Does that put NHTSA in the client politics category? What about the removal of a risk to others does that sufficiently diffuse the benefits? General thinking is that any loss in human life is a shared cost. Mashaw says recall campaigns are not as impactful as what can be achieved by engineering changes. Does this make NHTSA into a majoritarian agency or an example of interest group politics? FDA involves concentrated benefits for big pharma, but nonetheless placed under entrepreneurial politics Difficult to distinguish between entrepreneurial politics and client politics; most benefits are saved costs, while most costs are saved benefits The FDA puts a lot of money into big pharmaceuticals as well as imposing significant costs

Professor Weingast:

Is this a helpful presentation of agency behavior? Accurate and complete? Or should the relevance of the article be limited to agency-Congressional relations? Might underestimate Presidential role; if he has a strong political interest in a particular agency, he may intervene via appointments or appropriations; still, Presidential attention is a precious commodity Consider also Presidential aides (yay, Rahm Emmanuel!): can we play the numbers game here 12 aides versus hundreds of Congresspersons? OIRA versus a subcommittee? Dont discount the power of statutes Appointments: Ruckelhaus example (President offering appointment that meshes with Congressional priorities) is rare, but for important policy jobs, it is largely true that the White House will consider the possibility of Congressional blockage. Appropriations: Agencies send budget requests to OMB; unauthorized to make direct appeal to Congress or reveal the details of their original request. President proposes the ultimate budget and can withhold funding to a certain degree. President may be interested in agencies, but its really Congress thats going to define what you can and cant do. Iron triangle: Permanent staff of agencies have relationships with permanent staff of committees

Professor Seidenfeld:

Moral/Psychological influences: Agency employees represent the human face of the statute someone has to get things done


Does the article cover issues that vary depending on the type of agency and/or an individuals role in the agency? Compare agency heads, their assistants, and civil service employees (or politicians, semipoliticians, and career civil servants) Political appointees may be more beholden to the President Career civil servants may have a stronger sense of internal morale and commitment For example, we discussed that the Social Security Administration is considered one of the best places to work because there is an internal sense of morale and commitment. Each type has different career priorities and may identify with different groups; consider the recent law school graduate who wants to diversify his resume and eventually apply for a job in another department The articles part on social identity is perhaps overly optimistic, because it defines the primary identity of individuals as their role working within their agency. Do civil servants internalize the values of regulatory public service, or are they an actual social type? Many individuals have also worked for industries; the article doesnt acknowledge that past experiences may be where the more prominent and influential part of an individuals identity was formed. Compare with Professor Strausss example of a leading lawyer for a big pharmaceutical company in Washington during the 60s who was appointed to the Supreme Court. In Abbott Laboratories v. Gardner, he had a better understanding of the drug industry that the other Justices did. Did he need it? Finally, are moral/psychological influences more powerful than heuristics (rules of thumb)? Heuristics retreat in the face of more information; moral conviction endures.

Reflections which Professor has it right?

Do any of these perspectives help us understand what was going on with the airbag situation? NHTSA definitely seemed to be implementing something that was unpopular with the public and the automobile industry; this conflicted with the agencys duty of making decisions that would best promote safety. They are trying to fulfill their duty to best of their abilities, independently of all external pressures. Remember Volpe: Im trying to do a job over here (p. 779) Presidential apparatus has grown; Presidents are in a much better position to influence agency business Presidential appointment did not become predominant until Carter. Until the middle of the Carter administration, there were many career civil servants who would occupy single positions for the duration of their career. Over time, Presidentially controlled incentives have led to a greater injection of politics at the lower civil service levels. Wikipedia table of czar appointees: starting with the Clinton administration, there has been a striking growth in the number of political appointees (e.g. chief of staff, czar of climate change issues) that do not require Senate confirmation Many of the non-confirmed appointees have significant policy responsibilities that operate outside of ordinary administrative procedures (e.g. their communications are not public); alarming transition in Presidential control of agency action; helps explain why Congress has been so hostile to other appointees that do require confirmation

Article II of the Constitution


Article II grants the President the power to make appointments. The Senate confirms the individuals appointed. The President retains political control over most appointees and can therefore send them home without reason, but some positions are limited to for cause dismissals. To what degree are confirmed appointees beholden to the Senate which confirmed them? Are they only answerable to the President? Sec. 2 (by and with the Advice and Consent of the Senate) seems to be a device intended to divide the appointees responsibilities Free Enterprise Fund v. Public Company Accounting Oversight Bd. (DC Cir. 2008): Congress can set up independent regulatory commissions whose terms of service protect them from unexplained removal, but similar provisions for lower ranking officials are not permitted Sec. 2 Congress may by Law vest the Appointment of such inferior Officers, as they think proper in the Heads of Departments Heads of Departments applies to more officials than the lay reader (or indeed, the Founders) might think Is the Library of Congress a Department? The Librarian of Congress is appointed by president with advice and consent of the senate, but the Library is largely overseen by a Congressional subcommittee. The Librarian also enjoys life tenure. Controversial because Library of Congress controls the registration of copyrights and the distribution of royalties to the entertainment industry. Isnt this administration/execution of the law? And isnt President charged with faithfully overseeing the execution of the laws? Should Library therefore be required to submit budget requests to OMB? Library largely overseen by Congressional subcommittee President appoints Librarian, but how limited is that power if the Librarian gets life tenure?


Discussion about Executive Order 12866

Does anyone have doubt that this executive order is constitutional?

Does this apply to independent regulatory agencies? 4. The planning mechanism (Section 4) applies to both; but section 6 doesn't apply to independent regulatory commissions. 5. It could apply to independent agencies. 6. Independent councils are not wholly removed from the executive. The president's ability to demand the opinion of an agency head in writing extends to both executive and independent agencies. Furthermore, the executive helps the agencies coordinate different priorities independent regulatory agencies must submit budgets through OMB, supreme court cases will be argued by solicitor general, requests for additional authority must go through white house If this is a sensible way of making agencies think about the rules they're adopting and helps coordinate, why doesn't the planning mechanism apply to independent regulatory agencies? It could be respecting congressional choices about removing some agencies from the executive (of course they're not wholly removed, and the opinion regulatory clause extends to independent agencies). It could be recognizing that because Congress wouldn't like it, the political cost is too high. Note: president Obama took a bold step this summer, issuing an executive order which said that independent regulatory agencies should follow the provisions from 12866 Are there any doubts about how 12866 works? Question: What if a statute forbids CBA? Lets look at this with an example. The Clean Air Act forbids taking costs into account. What this means in practice is the EPA doesn't refer to costs in formal decision making analysis. However, if the President asked them to do a CBA, the EPA would still have to do the CBA since an executive order is binding on them. They would just not factor it into their policy analysis. It would be simply satisfying the Presidents need for information. Of course, the CBA undoubtedly shapes the actions of the EPA even if they don't officially consider it. Question: What about overlap between executive order and a statute, is this just redundant or another layer of bureaucracy? Lets go over a timeline for rule development to show how influential OIRA is in the entire process: Problem > should we have a rule (OIRA could send prompt, executive directive) >OIRA then places rule on regulatory plan or unified agenda (regulatory plan comes from Section 4 of 12866 , unified agenda is statutory) > draft cost-benefit analysis must be submitted to OIRA (must contain both quantitative and qualitative costs and benefits, must follow OIRA's guidance on how cost-benefit analysis is to be done) > proposed rule submitted for public comment and published > final cost-benefit analysis must be submitted and approved by OIRA (couched in soft language, but represents authority of president to control the rule-making to a certain extent) Regulatory Plan vs. Regulatory Agenda Regulatory plan - comes from section 4 of 12866 and is overseen by OIRA. It must be produced each year. The Unified Agenda - comes out of the Regulatory Flexibility Act and is concerned with protecting the Interest of small businesses. It is published twice a year and is available on Each regulation has a Regulatory Identification Number (RIN), a summary of the regulation, and telephone number. Can OIRA tell an agency to remove something from plan?


OIRA will inform agencies when agency proposed action is inconsistent with presidential agenda, and vicepresident will mediate dispute (Note that the President can always threaten an agency head with removal, but this can be politically costly: Ex. Andrew Jackson and his Secretary of Treasury - ran on the plat form of getting rid of the U.S. bank. He told the secretary of Treasury to remove all their money from the Federal bank and put it in the state banks. His secretary said no because he couldn't explain to Congress why he would do this. So Jackson he fired him, and then fired another one who wouldn't do it for the same reason. Then Jackson appointed Roger Tawney as Secretary. Tawney does it but Congress rejects it. Jackson later nominates Tawney for Supreme Ct. and Congress rejects the nomination. The point here is that forcing heads of agency to implement your agenda through threat of firing them can be done, but also can be politically costly.)

The Draft Cost-Benefit Analysis Sec. 6 requires that both quantitative and qualitative cost and benefits be considered. Section 6 expands on what would otherwise be the requirements in a Notice of PRM by the APA: It must also publish the draft regulatory action. This causes the eventual NPRM to become more detailed. So we see an expansion of what goes into rule making notices and the comment process. It also requires the agency to engage the public after the CBA and before the NPRM.

How does OIRA conduct their reviews? Section (b) OIRA Responsibilities: Sets time frames. Subsection 4) deals with the transparency of OIRA's process and the protection of its objectivity. Only the Administrators can receive oral communications initiated by those not in the executive branch. A lot of this is trying to get Congress to live with this process. Does this do enough to insulate the process from political forces? Note: In actuality, before the formal draft the draft CBA analysis is sent to OIRA. Therefore, they will have known that a regulation is being developed. So before we get to the stage of formal submission, there can be communications and changes that are not recorded. former EPA counsel described parts of the rule-making analysis as kabuki theatre which obscures previously made decisions Jerry Mashaw makes the point that trying to cabin discretion in Government is a "whack-a-mole game." So maybe we shouldn't try to try to control discretion so much. It simply creates a formalized version of human communications with out it actually being the real thing. One of the current rules of the Food Safety and Inspection service of the Department of Agriculture is that inspectors must be in poultry slaughterhouses, and look for sick chickens and take it off the line. There is a proposed rule that would reduce the number of inspectors and rely instead on plant employees to do inspecting. There was a CBA of this proposed changed, and it got support from OIRA. The problem is that unquantifiable health costs weren't entered into the equation. Discussion Question: So if your advising the next president, what do you advise him to do about Cost Benefit Analysis. Are there changes that could be made? Could require that data used should have a certain amount of statistical significance. Under the Clinton administration there was a lot of effort to make sure that people knew how to do these analyses well, rather than nitpicking a job at the back end of a job that was not so well done. There is a lot to be said about section 4 because it is forward looking, and is much more efficient than going rule by rule for things that the Agency has already put in a lot of effort doing. Can get a lot more mileage from this front-end approach. Maybe we should conduct CBA in a different unit of analysis than dollars. Could be argued that dollars aren't value neutral. Maybe the President could publish a list of qualitative issues that extra scrutiny can be applied to make sure that they aren't overlooked simply because they aren't quantifiable.


Overview: Presidential and Congressional Control of Agency Action Done through smaller offices with longer relationships with agencies than those between agencies and elected officials o Executive Apolitical bureaucracy OIRA Political influence Tzars Economic Council Domestic Policy Office o See Kagan on presidential directives from Domestic Counsel (which are not the same as prompt letters) o Congress Apolitical bureaucracy GAO o Every agency has 3-4 GAO bureaucrats who prepare memos on agency actions o Commissioners can include response with memo sent to Congress o Real time Political influence Oversight and Appropriations Committees o Iron triangle of information flow, but one distinct from that between political actors Permanent staff remain, as do permanent lobbyists Presidential Control of Agency Action EO 12,866: do benefits outweigh costs? o Benefits: Enhances political responsibility of rulemaking Coordination o Impacts entire regulatory state, not just one agency Accountability Slows down agency rulemaking to avoid fast-paced, unconsidered rule-making o More deferential to Executive OIRA not necessarily political agency in practice o Costs: Top-down priority setting from Executive Branch Does not account for institutional competence Needs accountability and transparency Emphasis on 6, retrospective analysis of undertaken rule? Adds veto gates 4, rough calculations v. 6, retrospective calculations o 4 good in setting priorities but all White Houses have emphasized 6 Better to involve OIRA in notice and comment period to serve purposes of 6? Front-end loading promises delay, special interest advantage Need transparency and accountability o E.G. FDA on advertising to children More participation (OIRA, special interests) means less efficiency OMB has limited resources so rule-making excessively slowed Unlawful and counterproductive transfer of authority in violation of institutional competence? CBA too partisan a standard?

80 Could result in wasteful regulation Outcome More advantageous to have than not but advantageous to President

TREAD Act Success o Transparency provisions worked reasonably well OIRA stuck its nose in and agency resisted o OIRA gave good advice about sensitivity analysis, and NHTSA responded o High-quality response from OIRA In-depth Apolitical Effective Detailed Failure o Agency rejected OIRA o OIRA should perform CBA, not interpret and implement law E.G. Emphasis on sensitivity analysis o Excessive and redundant response from general oversight body General comments o Specific statute makes this an unusual case o Return letters not common Democratic administrations review fewer rulemakings, while Republicans review more Democrats more effective? C.f. President Bushs EO on where agency heads report that President Obama undid o Sign of ongoing relationship Congressional Control Legislative Veto o Hypo: A proposed statute, REINS, would require that any significant regulation, to take effect, must be ratified within 70 days of its adoption by a joint resolution enacted by both houses and signed by the President. Assume that the bill effectively bans filibusters and bottling up in the committees. Would its adoption cure, or worse, the congressional irresponsibility associated with delegations to agency of the authority to create regulations within the boundaries of intelligible standards? No Chadha problem: retains bicameralism and presentment Advantages Political accountability o Congress, not OIRA, kills regulations o Congress (1) delegates and (2) passes regulation Disadvantages Cedes executive power to legislature Politicizes regulations Encourages agencies to avoid significant regulations Slows down executive branch New veto-gate Agency accountability o Leads to overly generalized standards Allows Congress to support general delegation but not specific regulations Puts arbitrary emphasis on some rules Increases congressional workload when Congress already has limited time


Congressional Review Act Enacted version of REINS Only used during changes of administration Sitting President would avoid vetoing own regulation so would influence agency rulemaking before ratification E.G. gutted OSHAs ergonomics rule Effectively one-house veto Sign of deregulation agenda through provision turning joint resolution into statutory process Congresss Informational Tools o Reside in GAO Appropriations and Legislation o Mischief: Imprecise tool of control, since gutting financially does not necessarily correlate with agency outcomes But cf. gun control Not proper and considered congressional action Potentially lacking scrutiny and good judgment No one reads Pushed through at end of session Committee members tend to outliers on issues Amount of money controls amount of work o Benefits Appropriations committee should be responsive to agency through close work But cf. Jaffe, The Illusion of the Ideal Administration Oversight Hearings o Rough approximation of level of rule-making and amount of congressional oversight o Correlation between number of pages in Federal Register and number of oversight days/congressional committee staff Does regulation substitute for original congressional action? o To avoid compromising other agency action, agency negotiates items not to be discussed (or to be discussed guardedly) beforehand Evidence of enduring relationships Cf. Leaky steam generator tubes in nuclear facilities (never mention Beaver Creek) o Works well in certain agency situations But cf. Gorsuch/Lavalle Dingelled = treated roughly in oversight committee o Impact on, e.g., Administrator Coile Costs of presence and preparation Outcome of pre-rulemaking cost/benefit analysis, which is a deterrence to future agency action o Executive privilege generally pre-negotiated to mutual satisfaction Executive privilege may not extend to independent regulatory commissions Does not extend o Just the Presidents and only delegable to departments Extends o Serves to recognize necessary level of confidentiality between executors and Congress o Separation of Powers (independent regulatory commissions technically in executive branch) o Appointment Power (President appoints heads of independent regulatory commissions)

82 E.G. Library of Congress Generally pre-negotiated E.G. select congressmen reading documents in closed rooms

For Next Class What is the reasoning process of Chadha? Are there flaws in the opinions (excluding Powells)? Are there ways of precluding the legislative veto without relying on the majoritys method?


INS v. Chadha Strikes down the use of legislative vetoes as unconstitutional. Chief Justice Burger Formalist. Justice White Functionalist. Strauss: Both justices are wrong.

Justice Powell's concurrence in judgment: Congress is assuming an adjudicatory function in violation of the separation of powers. - Q: What was the Majoritys reasoning process? - Structural: The framers wanted to separate powers among legislative, executive, and judicial. -Q: What is the purpose of this act? A) Before this act, if somebody wanted relief from deportation, a private bill would need to be initiated in Congress Such a bill would go through Bicameralism and Presentment. B) With the act, however, the Attorney General was given the power to suspend deportation if the immigrant meets certain requirements. This judgment would then be submitted to Congress. If either House objected to the order of deportation, the immigrant would be deported. Either way, deportation requires agreement between the executive branch and both Houses of Congress. Q: What has changed between the two? Hasnt Congress found a more precise and efficient way of achieving the same end? Now, we wouldnt need to enact the private bills that otherwise would be required under the old system. This is a more convenient method. - Court: This is unconstitutional because it is a legislative act that has not gone through bicameralism and presentment. This is a legislative act because it has the purpose and effect of altering the legal rights, duties, and relations of persons, most notably Chadhas. Before the veto, he had the right to stay in the country, but the veto takes it away. Problem with this reasoning: AG only created right not to be deported if the legislative veto provision is unconstitutional, but the legislative veto is unconstitutional because the AG created a right not to be deported. This is circular reasoning. - Justice Whites Dissent: Points out that there really isnt a difference between the two regimes. You still have all three actors (Executive, Senate, House) under the second scheme. It is merely a more efficient way to complete immigration actions than private bills. - Q: What is wrong with Justice Whites argument? - The Framers did not intend for a frictionless legislative process. The fact that Congress can exercise its power through an omission (i.e. through silent acceptance of the Attorney Generals determination) goes against the Framers intent. - Functionally, the process under the new bill is opposite to that of the original one you have the Executive introducing a bill and the Legislature either accepting it or vetoing it. -But: This is not a real problem in the INS context, because it is merely replacing private bills with a more efficient routine. - Q: When might it be the case that turning legislature first into a condition subsequent might actually be problematic? - Strauss: There are a bunch of cases that may raise this issue:


Example: If the President has his own ideas about effective organization about the government. Two possibilities to change the structure. 1) Get Congress to pass a statute. 2) Congress passes a reorganization bill in which it authorizes the President to submit reorganization plans to it. If the plans arent disapproved by either House within 60 days, they go into effect. In effect, Congress substitutes action with inaction in expressing its approval. - If the President wants to move NHTSA from the DOT to the Department of Energy, doesnt this confer the President with power to alter the enacting statutes placing NHTSA in the DOT? Example #2: Congress enacts appropriations proceedings. Two possibilities: 1) Congress enacts an appropriations bill. 2) If the President wants to reorganize the way in which the money is distributed, he has to tell the Congress that this is what he wants to do. As long as there isnt an objection within 60 days, the money can be re-allocated. - If you were a member of Congress, which would you prefer? (2) permits the President to allocate spending in ways that you dont have to vote (e.g. funding for stem cell research). (2) also frees up a lot more time for Congress to pursue more electorally beneficial activities. The President also prefers #2, because it grants him more power. - Strauss: Here, the legislative veto serves the interests of the both the President and Congress. It creates an efficient framework in which both can make marginal adjustments over time without having to gear up the creaky business of legislation. Justice White is right in this respect. - Q: What is left that Justice White doesnt worry about but ought to be worrying about? What field can the legislative veto be found rather mischievous? 2 Crucial Problems 1. Regulations If Congress reserves a legislative veto over substantive regulation. This is particularly a problem if Congress reserves the veto over independent agencies. The President does not have the same level of control over independent agencies, so Congress would get a veto power that the President did not have. 2. Incentives to legislate with care would diminish. Congress would legislate mush and wait for the rule to come out before exercising power over them. This would go against the fact that currently, the delegation of regulatory power depends on intelligible principles. Being able to exercise the legislative veto would decrease the care in which Congress cedes power to executive agencies. This could also have a spillover effect on the courts. It increases strain on the judiciary, which woul have to deal with more vaguely worded statutes. Note: Neither of these problems are present in the legislative veto at issue in Chadha. Note: The ~200 legislative vetoes that have been enacted following Chadha have really been passed under the rubric of mutual cooperation between the Executive and Legislative branches, not to be in place for potential abuse. - (p. 654) The President possesses means short of legislation to assert control of agency action. This is a misstatement. The President doesnt always have recourse to these means, especially when Independent Agencies are at issue. Bowsher v. Synar Held the Gramm-Rudman-Hollings Act unconstitutional because it gave the legislature removal authority over an executive officer. - Process: Automatic reductions occur in any fiscal year the federal budget deficit exceeds the maximum deficit amount by more than a specified sum. 1) Each year, the OMB and CBO independently estimate the amount of the deficit.


2) If that amount exceeds the maximum targeted amount, they independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. 3) The directors jointly report their estimates to the Comptroller General. 4) The General reports his conclusions to the President. 5) The President issues a sequestration order mandating spending reductions specified by the Comptroller General. 6) There is a waiting period by which Congress may, by legislation, reduce spending to obviate the need for the sequestration order. If not enacted, sequestration order becomes effective. - Note: The Comptroller General is the head of the Government Accountability Office, which is a department of Congress. 1. 2. Two elements: Congress's authority over the head of the GAO (removal power) GAO is a Congressional agency performing an executive function.

Two possible problems: 1. Congress cannot exercise control over an executive department official, or; 2. Legislative official cannot perform an executive function. Justice Stevens: Congress acts through Bicameralism and Presentment. The Comptroller General cannot take this legislative action, because the action has not been considered by both houses and the president. - Chief Justice Burger and Justice White: Both treat the head of the GAO as an executive branch officer because he has executive responsibility and is appointed by the President by the advice and consent of the Senate. From this point of view, he does look like a member of the Executive Branch. - Q: How important is this distinction? - Note: Congress cannot remove the head of the GAO without Presidential approval (unless via a super-majority). - For cause removal: 1) Mistretta v. U.S. For cause removal is a negligible threat to judicial independence. 2) Bowsher Majority: Now, it is a major threat to the Comptrollers independence. 3) Morrison v. Olsen: We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws. - Bottom line: SCOTUS has wavered back and forth on how to approach for cause removal, perhaps for the better. - Q: Why would Congress create such a system? As a check on budgets tying itself to the mast. Ex: Defense Base Closing Act - Elaborate systems of commissions to identify military bases that needed closing. President was to decide. Then Congress committed itself to an up or down vote impermissible in Congress to try to take an individual base off the list. Why? - No other way to manage individual temptations. - Q: Is this really exceeding Congress control into the Executive, or is this an act of self-control? - Constitution: Article I, Section 6, Paragraph 2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the authority of the United States, which shall have been


created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. - Corollary: Congress is not to be engaged in the execution of the laws. One view of separation of powers manifests itself in the idea of Congress being able to conduct itself independent of the interference of the President. The plan in place may be buttressed by this conception of separation of powers, since it serves as an exercise of self-restraint rather than an act of legislative aggrandizement at the expense of the Executive. But, if Congress could work around separation of powers by designing statutes like this, it would be a serious problem. Neither Justice White nor the Majority treat the problem this way, because both see the Comptroller General as an executive branch official. Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise Congress tried to dominate the board of the Metropolitan Airport Authority. Court found that Congress could not do that, because it cannot take over the appointment of actors to an executive authority. Problem: The Librarian of Congress appointed by the President by advice and with consent of the Senate. It has traditionally been understood as a position of life-tenure. The Librarian gets to appoint three full-time Copyright Royalty Judges, and he does this in consultation with the Chief Copyright Royalty Judge (another person he appoints). The Librarian is in charge of millions of dollars worth of copyrights. 1. 2. Is Copyright Royalty dispersal execution of the laws? If it is, is this an unconstitutional delegation?

- Making rules and regulations could be seen as an executive function. - It is definitely a problem if, e.g. one House passes a resolution by itself. Yet, if Congress passes a statute that affects the duties of the Librarian, this wouldnt be any different the very function of the Executive Branch is to abide by and implement the directives and statutes that Congress directs. - The lifetime tenure aspect doesnt really matter. You could potentially treat other offices like that. This doesnt mean, however, that the President doesnt have the power of removal. - Bowsher Majority: It seems like this would be an executive-branch office. This would imply that the budget has to come through OMB, that the President also has various other powers in relation to the Library of Congress that it otherwise doesnt have currently. - Strauss: If Congress can regularly do this sort of thing, we would have undone the entire concept of separation of powers. In any other respect, the Library of Congress is an institution of Congress, and the President is not advised to go there. - Strauss tends to be a functionalist (not entirely like Justice White, however). Formal arguments can occasionally work, but they are not always reliable. - Note: On the same day that Bowsher was decided, the Court decided a case (CFTC v. Shore) that involved pendent jurisdiction over commodity securities. Could an executive agency entertain a counterclaim that would otherwise have to be adjudicated in state court? - SCOTUS: It could. Yet, the important takeaway is that this opinion was completely functionalist in stark contrast to the formalist approach seen in Bowsher. Justice Kennedy: If it is an issue of aggrandizement, then we use formal approaches. This is a setting in which close attention to the text is called for. However, if the issue is rather one of encroachment, (like CFTC v. Shore an encroachment upon judicial power) a more functional approach is appropriate.


-Similarly, in Morrison v. Olsen Independence of an independent prosecutor does not interfere impermissibly with the executive function. In that situation, Congress is not trying to aggrandize its own power, because the independent prosecutor removable for cause only by the AG. Congress maintains no control mechanism over him. Problems with functionalism: Soft, malleable, and subject to manipulation.


Judicial Control of Agency Action Strauss doing it this way loses any perspective on historical background SEC v. Chenery: 1) Courts are Overseers, thus they must know how Agencies work. 2) Oversight of Agencies depends on the fact that Courts are overseers and not public policy makers. Courts must defer to Agencies in their proper areas of discretion. in order to effectively oversee an agency, court must know how an agency goes about making it decisions oversight is limited to that agency must do it with clarity dont entertain lawyers post hoc revelations APA 706 Scope of Review (2) 6 different things for courts to think about really 5 - 6th (F) doesnt count because it never comes up (A) has to do with factual judgments - arbitrary, capricious, an abuse Citizens to Preserve Overton Park (1971) did Secretary act within the scope of his authority? assuming he has, did he act reasonably Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. This Janis-faced directive is cited both for the proposition of extensive inquiry and for narrow standard of review. State Farm Case Procedural History brought in the D.C. Circuit decided for State Farm on the basis of when an agency is revoking its rule, it has a much higher burden of demonstrating the correctness of its action than when it is adopting a rule Issues How, and if so why, does rulemaking review differ from statutory review? Different definition of rational when dealing with statutes much less deference to their finding of facts in rulemaking statutes - presumption of rationality court can say this makes sense because of certain facts that the legislature never actually said not true about rulemaking Lack of any discussion mandating airbags or non-detachable automatic belts we dont upset their view of the facts, but we are going to have our own interpretation of the reasoning disagreement between majority and dissent just about the way agency reasoned about the detachable seatbelts inertia effect a lot of people dont wear seatbelts because they are lazy so they wouldnt detach either cant assume they would detach arbitrary and capricious if people wouldnt detach the seatbelts, it would change the statistics from the agencys reasoning Hard Look review for big cases rulemaking of consequence, courts will engage in a careful and searching review of the agencys reasoning this results in opinions that are not concise and general ( 553) Sierra Club v. Costel, a 104 page opinion examining the EPAs reasoning process in some sulfur dioxide case, simply to come to the conclusion that the EPA was reasonable. Maybe its okay for rules that create hundreds of millions of dollars in costs to be given strong attention from agencies and undergo a hard look by the court. The result of this, according to an agency insider, is that those who dont believe in rationality in promulgating rules are forced to accept it. Is the Court serving a proper function here?


Safety was one of the primary goals searching analysis shows that agency was not acting according to their statutory purpose relief just goes back to NHTSA for another standard political reasons majority refuses logic of the dissent that agency should be considering changing political opinions on the issue court should be assessing the reasonableness of the agencys actions on the basis of what it says its reasoning is, not what possibly may have influenced the agencys decision (politics) the downside of State Farm the problem of ossification agency rulemaking has become much more difficult and costly (to the Agency, meaning that they formulate fewer rules) than it once was literature questions whether hard look review in fact extends beyond major rules, that get OIRA review. Most, or at least a lot, of the ossification coms out of the OIRA review process makes sense that much of the ossification should come out of the OIRA process because the courts may not be best equipped to handle it Strauss Judge Bazelon says the best courts can do it created procedures, but Judge Levanthal? Says that procedures are created by APA, not appropriate for the courts to create Strauss says the staff at OIRA are economists are they really well equipped to handle the scientific analysis? One could think that the OIRA process has permitted the courts to lighten their touch

Judicial Control of Agency Statutory Interpretation Who really interprets statutes?? U.S. v. Trucking Association (1940) the interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function. Vs.

In any case *well-established interpretations by responsible agencies] are entitled to great weight. U.S. v. American Trucking Assns, Inc. agencies are the most qualified to influence interpretations of the court, but it is the courts job to make the final interpretation it is sensible to pay attention to the interpretations of agencies Skidmore (1944) 7. case brought by employees to try to recover overtime denied by trial court and affirmed by appellate court 8. Court says it ought to pay attention to the interpretations and opinions of the Administrator 1. though not binding and it is the courts final decision, these interpretations can carry a lot of weight because of the Administrators experience and expertise 2. The Skidmore Test: the weight given to the Agencys interpretation will be based on the thoroughness evident in its consideration, validity of its reasoning, consistency with earlier and later pronouncements as well as the normal powers of persuasion. 9. Court says the statute requires the consideration of certain factors, not necessarily fixed statutory meaning 1. there leaves room for different results in later cases mixed questions of law and fact 2. lays out factors to be considered, much like a negligence case in Torts th 3. 9 Circuit interpretation does not make it National Law doesnt finalize matters 10. Strauss interpretation of Skidmore 1. giving weight to the agencys interpretation differs from simply allowing the agency to make an argument before the court 2. doesnt mean that the judge is powerless to go the other way from the agency Hearst v. National Labor Relations Board (1944)


case about whether the people who sold newspapers were employees of the newspaper company meaning of word employee in the statute court could say it is a function of state law, but it is a national statute The court could impose a uniform federal meaning in all statutes that use the term, but the interpretation is not uniform across all federal statutes.

The court decides the case consistent with national labor policyset by the NLRB job of the court is not to decide who is an employee but rather the National Labor Relations Board acted reasonably in deciding who was an employee similar to Overton Park is it within their authority? Did they act reasonably? Chevron Propositions Chevron take a step past Hearst: where an agency is in the picture, statutory imprecision is presumed to be a delegation to it Chevron takes delegation to a new level by frankly recognizing much legislation is indeterminate, often for public choice reasons

A rule favoring agency views helps to assure the national uniformity of law, in the context of a 53,000 case docket the Supreme Court cannot hope to police effectively 2 ways of viewing Chevron Strong Form not associated with general approaches to judicial review of agency action such as State Farm addressed Step one: Has Congress decided the precise question? Step two if not, courts are bound by the agencys resolution consistent with the possibilities of the legislative text

Softer Form integrated with general approaches to judicial review, such as State Farm addressed

1 to what extent has Congress resolved statutory issues? What could this statute mean is necessarily a judicial question, but gaps are taken as an implicit delegation to agencies to act within any possibilities the text leaves open Practical Dilemmas Supreme Court has about 80 chances/year to control courts of appeal and state highest courts the courts of appeal decide > 53K cases annually, about 13K by published opinion save in unusual cases, agencies cannot seek review some agencies cannot know or control where review will be sought agencies are responsible for uniform national administration of programs


Chevron Revisited Last Wednesday, we saw that there are two different ways in which it possible to view Chevron. 1) Strong form, not associated with general approaches to judicial review of agency action, such as State Farm addressed: Step one: Has Congress decided the precise question? Step two: if not, courts are bound by the agencys resolution consistent with the possibilities of the legislative intent. This way overstates the realm of agency behavior. 2) Softer form, integrated with general approachs to judicial review, such as State farm addressed. Step one: to what extent has congress resolved statutory issues? Step two: an agencys choices within the range left open to it by the statute will be reviewed like any other agency action under 706 for arbitrary, capriciousness, abuse of discretion. Section 706 of the APA does not give courts a choice. They are to decide questions of law. How much authority does the agency have? is a question of law. It follows from this that courts review exercise of authority to see whether its arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Skidmore leaves some wiggle-room for agencies in the initial step of addressing whats the agencys authority? Theres judicial deference to what the agency views as the agencys authority. So if Skidmore is present in Step 1 of Chevron, it is present elsewhere. It is important to pay attention to how courts characterize Chevron, and which of these approaches they take. If you are at the agency and you know the court is in charge of step 1, your best bet is to imitate the court in figuring out what the authority is. But, you have a bit of wiggle room left by Skidmore. One of the traditional tools of statutory interpretation that can be used at this initial step is that courts are supposed to accord significant weight to agency views of what their statutory authority is (this has been the approach since 1828). Agencies get to that view in column one of Mashaws chart (p. 456 of the casebook). To the extent that Skidmore is present at the first step of Chevron, so will be the ways in which agencies interpret their statutes. MCI v. AT&T Statutory issue: what does the word modify mean in section 203(b)(2) of the Communications Act: The commission may, in its discretion, and for good cause shown, modify any requirement made by or under authority of this section Strauss: how did the issue come about? What is the regulatory context in which this arises? Answer: The FCC was deregulating the tariff filing requirement. They initially made it optional for MCI and other small carriers in the new microwave age. This is just about when cell phones start to appear. Under the statute as originally enacted every carrier had to file rates for their services. This was principally AT&T, because they basically had a monopoly over their landlines. All of a sudden, there was a competing technology. Strauss: Had congress made changes to the statute to accommodate this changing technology? No. But Congress also had not made any changes to accommodate cable TV. The FCC had to find ways of producing regulation that would accommodate the new competition (pay per view and other things like that). In that context, the Supreme Court thought that the FCC was responsible generally for regulating the communications media and could adjust what they did based on new technology. It approved the FCCs new regulation although the statute (a different statute from the one at issue in MCI) was silent on these matters.


What was the significance of microwave technology? It undermined AT&Ts monopoly. Landlines were no longer required. The case doesnt tell you this, but deregulation was very much in the air at the time. There was a turning away from the idea that regulation was an important federal activity. This idea remains in some areas. What did the changing technology suggest to the FCC? Since there was no monopoly, it was not necessary to regulate the new carriers. From the FCCs perspective, good cause existed because of the developments in the markets, and the courts and Congress had permitted them to respond to those kind of changes in the past. The majority thought that modify only meant incremental change. The majority based their reasoning on dictionary definitions. The petitioners relied on Websters third which defined modify as to make a basic or important change in. The majority thought this was an aberration. Strauss: Websters Third is a poor piece of work as a dictionary. The majority disregarded it because (1) it was an outlier, and (2) more importantly, it was not what the enacting Congress thought modify meant the dictionary came out long after the statute. The dissent does not find this persuasive. P. 688. The first definition in 1934 is to limit or reduce in extent or degree. (Websters 4th). The majority reads the statute as static; the dissent reads the words in a framework that permits the agency to change the meanings of the words in response to technological developments in the field they are charged with regulating. This would have been a tremendous modification in 1934, but today it is a much smaller modification. Another argument is that the majority puts the requirement of filing tariffs over the purpose of the statute. AT&T was not the only carrier at the time, although they were the elephant in the room. We discussed Scalias argument at 684-685. What would Scalia say about Article II which says the president may demand the opinion, in writing of principal officers in each of the executive departments? An important way of thinking about this case is as an alternative to the delegation doctrine. How do we keep Congress from giving away too much power? Were not going to find elephants in mouse holes or give words meaning that give agencys freedom to do what they have been authorized to do. That influence can also be seen in FDA v. Brown & Williamson Tobacco. FDA v. Brown & Williamson Tobacco The justices have changed sides in the techniques that they bring to interpretation. The issue: can the FDA regulate cigarettes as drugs or devices or combination products? under the FDCA? The FDA has a history of disavowing such regulation, and Congress has created a different regulatory regime for the tobacco with the assumption that the FDA did not have this power. The original text supports regulation, but it would make waves violating Strausss first rule of statutory interpretation. How has the factual background changed so as to justify regulation in the FDAs view? Nicotine was discovered to bring about physiological change and these changes were exploited by tobacco companies to increase sales. The suggestion was that tobacco companies not only knew that nicotine was addictive, but that they were constructing cigarettes to deliver the dose.


Whats driving the FDA here? Partly, its the new evidence about the behavior of the tobacco companies. The president also has a role. Clinton made a big deal out of this. This case resulted in a presidential directive to the FDA go out and get em. This was drafted in the FDA, it was not negatively received by DHHS. It was very much a public regulatory effort. The majority keeps talking about Congress clear intent and how Congress has directly spoken. Where does this come from? Giving jobs to the FTC and not the FDA, passing statutes that had the opportunity to give this problem to the FDA but not doing so. But usually the court does not treat silence as authoritative. Here, the conservative justices build their case on this kind of stuff. Notice p. 692 (bottom). The strong form of Chevron appears: a reviewing court must first ask whether Congress has directly spokenif not, a reviewing court must give effect to the unambiguously expressed intent of Congress. Again, this is only one way of characterizing Chevron. Is this a dynamic statute rather than a static statute? It must take its coloring from events later on in order to support this meaning. Perhaps all the intervening events serve to limit the meaning of drug and device. Student: The whole code canon also comes into play. Drug and device are nouns, as opposed to the verb modify which is more susceptible to changes in the code. Student: Why didnt the majority make the argument that no one considered tobacco a drug or device in the 1930s? Strauss: thats not quite true there was a period of time during which cigarette advertising claimed health benefits, and the FDA got on their case for that. Those claims subsequently disappeared from cigarette advertising. Intended also plays a role. (Section 321h). Whats been discovered recently is the secret intent: getting consumers hooked. This is not a claim in the sense of advertising, but demonstrates intent to affect the structure of consumers bodies. This may not be another form of technological change, but it makes the facts appear in a different light. Student: another strong majority argument is that the FDA would have to ban cigarettes, and other legislation makes that unlikely. Student response: the misbranding argument is not strong. It makes the words more loaded than they are. There is no recommended dosage on the label for cigarettes. You could have instructions, similar to the surgeon generals warning, that fall short of taking it off the market. The dissents response to this: the act should be interpreted flexibly in light of Congress overall desire to protect health. This isnt much of an argument. Student: a compelling part of the dissent was the response to the majoritys ban argument that the FDA could and should ban cigarettes. Strauss thinks OConnors opinion is correct. Congress really is seized with the issue theyve been doing a lot, and in that context, why take the heat off of them? They know how to respond. The FCC is an agency in a very striking position. Its administering a statute enacted to control voice transmissions (and not data). But, data is more important today. Student: is part of the problem the way the majority is formulating Chevron? The strong formulation forces them to say that Congress has directly spoken to the issue. Strauss: that proposition does work all over the place in contemporary jurisprudence (Ex: Whitman v. American Trucking Assn). Note 2 on p. 705. How much control does this principle give to reviewing court?


Theres only a certain number of cases that are so uncertain where our priors become a big factor. This occurs more at the Supreme court level because of the cases they pick (they tend to be the hardest). They still manage unanimity a surprising amount of the time. Student: for issues of great economic and social significance, courts should give more deference to the agency. Student response: the argument goes the other way, because Congress may want to play a role given the importance of the issue. Its in the better interest of the Court to send it back to Congress. Strauss: you may not even have to believe Congress is going to act. The people who believe there should be a delegation doctrine take the position that there are some issues that are so important that they have to be decided by the people who represent them. Then one comes up the reality that there are not judicially manageable standards for telling Congress when its legislated enough. Telling them the court will not find elephants in mouse holes does not force them to legislate differently. United States v. Mead Corp. The editors really overstate this one. Strausss advise is to ignore all the editorial stress reflected in their notes and descriptions. Facts: Mead Corporation imports day planners, and there is a dispute under whether it is covered under the tariff schedule for registers, account books, etc. Under the original interpretation, Customs treated them under another subheading that did not require a tariff. In 1993 they began applying a 4% tariff. Issue: the adequacy of the customs headquarters issuance of new letter. Does Customs determination get Chevron deference (space) or Skidmore weight? The markers that this is unofficial: although it came out of headquarters, any of the 46 customs offices could issue the letter. It also didnt undergo the notice and comment requirement, and only contains reasoning because Mead Corp. protested. The initial ruling that Mead protested was published, but the longer letter explaining their decision was unpublished. Customs treated the documents fairly informally it explicitly has no precedential value for the agency. Chevron is reserved for something more dignified. This is one of Scalias angrier dissents. Does Justice Scalia agree that one needs an authoritative statement to get into the Chevron haven? No, hes willing to buy it in this instance. It has the imprimatur of the director of Customs. The Solicitor General has also signed off on it its in the governments brief.

National Automatic Laundry & Cleaning Council v. Schultz, 443 F2d 689 (DC Cir 1971) involved similar kind of advice. 650,000 advice letters a year, 10,000 were signed by the administrator. Judge Leventhal said that if it was signed by the administrator and did not proclaim that it was tentative, it has sufficient dignity to be reviewed by the court it constitutes a final agency action. SEC v. Chenery 332 U.S. 194 (1947): lawyers post hoc rationalizations dont count. When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.


We also emphasized in our prior decision an important corollary of the foregoing rule. If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency's action. Scalia, who taught administrative law, seems to have forgotten this one. Note 5, p. 719 deals with this authoritative question. Folks who are fond of executive authority (Kagan and Barron) buy into this. Scalias ossification concern: it forces the agency to engage in cumbersome procedures. Natl Cable & Telecom Assn v. Brand X Internet Svces. 545 U.S. 967 (2005) Here, the 9th circuit had decided that in a case between private parties, data transmission had to be dealt with as telecommunications (47 U.S.C. Section 153). The issue was whether this binds the FCC, and the courts conclusion was that it did not because the determination fell within their Chevron space. Although the 9th circuit may have decided something else previously, it didnt matter because in effect, the court of appeals in the context where an agency has Chevron space would be in the same position as a court in New Jersey deciding a question of NY Law. They have no power to create authority. Justice Scalia, having committed himself to this view, including the ossification argument in Mead, thought this was even worse because it gave the executive the authority to review judicial decisions. Thats not necessarily true because the authority to fix the rule in that matter still lay with the FCC. The other problem with the ossification argument is that it only works at the Supreme Court level, and the Supreme Court only decides 80 cases per year. Barnhart v. Walton Statutory issue: Two possible interpretations of the Social Security Act exist. The statute dictates that the recipient of social security disability payments must be unable to engage in any substantial gainful activity for at least 12 months. Barnharts argument is that schizophrenia counts even after its been medicated. So the question is what the 12 months stipulation applies to. Does it mean an inability that lasts for at least 12 months, or does it mean that the impairment lasts for at least 12 months? (In his case, the schizophrenia still existed for at least 12 months but his treatment left him capable of functioning.) Why are the disability checks being denied if there are two plausible readings? They are going to Chevron deference here even though notice and comment rulemaking was not used.


CLASS Highlights: 1) Judicial control of rulemaking: My take, courts refashioning rule making in their own image. As if it were at trial with all the protections and attitudes that comes with trial procedure. 2) Availability of Judicial review: So what is at stake, is the two sided character of judicial review. If only the regulated can get into court, then (machine gun impact of daily impact of the regulated) this will move regulation in favor of the regulated and the interest. 3) Admin law necessarily sits atop the junction of law and politics. The ideal of government of law and not of people is impossible. There are going to be people involved, the issue is how to maintain a balance. Central is the question of the unitary executive and the ways this influences other actors. (Is this my duty? vs. Yes, President I am loyal)

4) The increasing complexity of rulemaking is leading agency to consider rulemaking by other means. We spent some time talking about guidance, but let me repeat. When an agency adopts rules, it is best to state standards rather than rules. But as soon as you have done this, (make an airbag that can do this or that) the value of being told if you do it this way you are incompliance has incredible value. This is what most guidance is about. This is what has to be understood and carefully protected. If that stuff has to be done formally we are back to command and control, and in turn have greatly increased the cost of this system.

Class Transcription: This just came up at SCOTUS, Chevron Problem: Normally the IRS has three years to go over your tax returns but they get six years if you omit 25% the price of spending. What if you inflate the basis, capital gains When you falsely claim an omitted basis, what happens? Came up before, but now we have Chevron. Back then, Court admitted it was ambiguous, but went on to say is the best interpretation. Now with Chevron, the IRS passed a regulation with another interpretation. So does treasury get to revise a SCOTUS opinion (from 1958, but now we have Brand-X)? If a matter is in the Chevron space of an agency, SCOTUS only decides the case not precedent. -Breyer for majority said this is step one questions. Before they said it was ambiguous but that was a conclusion form a different rational. Ultimately, this is not part of the agencys Chevron space. -Scalia liked this, but still does not like Brand-X -Kennedy has a dissenting opinion. What they say is that there is enough change in the statute that the prior interpretation does not control. Relevant Statute: 26 USC 6501 - Limitations on assessment and collection (a) General Rule Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed


(e) Substantial omission of items (1) Income taxes (A) General rule - If the taxpayer omits from gross income an amount in excess of 25 percent of the amount of gross income stated in the return the tax may be assessed at any time within 6 years after the return was filed In 1958 after Congress had enacted identical language into the Tax Code of 1954, the Supreme Court decided in Colony, Inc v Commissioner, 357 US 28, that under the Tax Code of 1939 the 6 year period was not available in relation to a tax return that had dramatically overstated the value of sold property, thus greatly reducing the profit from the sale subject to capital gains tax as part of income taxes, because to misreport basis is not to "omit" anything. It acknowledged that the Tax Code was ambiguous, but found taxpayer had the better of the available arguments. The IRS recently adopted a regulation treating an exaggerated claim of basis as "qualifying for the sixyear period. How does this compare to Chevron? Brand-X?


What have we not done that an admin law class would have done? (From this point on, Strauss gives a lecture covering a number of topics, below is the transcription.) Information-gathering, inspection, and enforcement Due process (Not covered here) Administrative adjudication (Trial at the agency level) More extensive attention to issues we have touched on: rulemaking, political controls and influence, standards of review, delegation, constitutional structure of government Transparency issues (FOIA, etc.) and the influence of the internet on the function and possibilities of government Judicial control of agency procedures (Chapter 6(C)(3)) Vermont Yankee Nuclear Power Corp v Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), pp.727-764 Strauss wrote the governments brief for this case, and was pleased with its disposition. He further states that its expected impact was overstated. Held: Courts may not make procedures more stringent than those prescribed by the APA 701 Application; definitions (a) This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review;l or (2) agency action is committed to agency discretion by Law 706 Scope of Review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. Judicial control rulemaking: The expectations of the Yankee case turned out to be quite overstated. The holding of the case, seems to be, that the APA states the procedures and courts may not increase them. But on the other hand, courts have said, you have to show the scientific data for those who want to comment. That is, you have to produce a basis and purpose (anything but concise and general), the Court will take a hard look at how well you reasoned, all of this seems like additional procedure. Also, in State farm this was endorsed, esp. the hard look part. My take, courts refashioning rule making in their own image. As if it were at trial with all the protections and attitudes that comes with trial procedure. This, however, was a no under Yankee.


On the other hand if you accept rulemaking is analogous to congressional action, then the notion that notice and comment possibility serves as a major restrained on agency rationality is the key to showing the public the important things. Not a trial but different form of legislative hearing. A politically influenced process, not constrained to a record in adjudication but where one must demonstrate reasoning to a greater degree. Availability of Judicial review: Getting into court is relatively simple. Standing is hard. Some elements in admin law are simple. If you are among the regulated, then you have standing; what about if the regulation is intended to benefit you? So what is at stake is the two-sided character of judicial review. If only the regulated can get into court, then (machine gun impact of daily impact of the regulated) this will move regulation in favor of the regulated and the interest. If, however, the beneficiaries can get into court, then you have to look both ways before you jump. Reviewability: Two things. One, the presumption of reviewability is quite strong. Two, the strange conflict between APA 701 and 706. discretion and DISCRETION!! APA slide 701 Application; definitions (a) This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review;l or (2) agency action is committed to agency discretion by Law 706 Scope of Review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Exhaustion, Finality, and Ripeness: I get a perverse pleasure having the final class being about this. Two prominent opinions seem to have been written with an eye, this will be useful to teach. Once case, each expresses a different opinion: Judicial remedies Not final Not right. Challenges for the future The realistic constraints of budget - the effective deployment of limited resources Increased use of disclosure techniques (internet).


Qui tam actions: if you bring things, you get dollars. Suggest increasing these citizens suits. Internet: impact is and will be huge. E-government, and the development of various capacities and resources. EPA runs some of this, not GSA. Good for EPA but how useful for DOT? Strauss asked, why is GSA not in charge? Answer from civil servants: I am not touching that. Internet integration Under EPA for historic reasons, and not GSA or Office of Information and Regulatory Analysis Balance between politics and law - Bridges reality between "Government of Laws" and "Government of People" Presidential power and the psychology of office (Is this my duty? vs. Yes, Mr. President I am loyal) Congressional balance among legislating, oversight, and constituent service "The Broken Branch" (American Enterprise Institute and Brookings publication) Judicial openness to law-invocation from both sides of the issue Essentially equivalent to standing 1970's massive expansion in standing Sierra Club and the Autobahn Society were in one piece of litigation in 1970. . By the 80 = 290; 1990 = 300, 2000 into the 4-500. Strauss speculates that standing may contract in the future Accommodating rulemaking to contemporary uses and realities Rulemaking procedures that vary with importance For important rules, nailing down Judge Leventhal's legacy, and integrating analytic requirements Leventhal established the hard look standard, and the expectation of showing your data and reasoning Controlling the discouragement complexity offers to notice & comment rulemaking Coordinating rulemaking analytic requirements Federalism impact analysis, family values impact, ect. These all need coordination but have not yet quite happened Increasing 12866 openness and timeliness? If rules should be "standards," finding guidance's proper place When an agency is adopting rules, it is best advised to state standards rather than rules The increasing complexity of rulemaking is leading agency to consider rulemaking by other means. We spent some time talking about guidance, but let me repeat. When an agency adopts rules, it is best to state standards rather than rules. But as soon as you have done this, (make an airbag that can do this or that) the value of being told if you do it this way you are incompliance has incredible value. This is what most guidance is about. This is what has to be understood and carefully protected. If that stuff has to be done formally we are back to command and control, and in turn have greatly increased the cost of this system. Not just a balance between politics and law, but also there is also politics in law. The decay of standards of propriety is bad. Can apolitical law be returned? Before the EPA could not look at the Presidents foreign policy because it was not part of the statute . But the EPA stated the political issue was the basis of the rule. How can we balance transparency to the public with the need for candor in internal communications? Balancing enforcement and cooperative endeavors - encouraging / rewarding compliance efforts. Maine workplace enforcement Cut accident rates substantially Carrot and stick *Is this impermissible intimidation? Vertical coordination Federal-state cooperative federalism


Not NHTSA EPA OSHA NRC Statutory authority to permit states to regulate medical radiation under NRC's supervision Federal-international NAFTA Working with the EU WHO Codex Alimentarius (Food safety issues) Accepting safety certifications of other countries Can we use approved drugs of other places? Maintaining the credibility abroad of American regulation as apolitically expert ( if seen abroad as partisan politics, makes US system less trusted and used elsewhere) Airframes Approval by FAA Pharmaceuticals Approval by FDA Financial markets Agricultural products (including GMO's) Elsewhere, you see comitology Panel of representatives from each country (experts) Closed meeting Result announced without elaboration Questions at end of class: Chevron step 1: Any principles about how hard the Court tries to shrink this possible space? Strauss: It can be a matter of which Justice is doing it. Scalia is prone to find less Chevron space than others. Scalia may see the ability to respond to executive change as a reason to prefer Chevron space. (Democratic responsiveness a good thing).