Regulatory State

I. Agencies in the Structure of Modern

Federal Government
A. What is an Agency?
1. In General
a) Administrative agencies are the primary sources of law
b) Agencies enact more binding rules of conduct than
Congress
c) Adjudicate more disputes than all the federal courts
combined
2. Complex
a) an agency is a unit of government created by statute
b) It is delegated authority (power) by that statute which was
created by the legislature;
(1) organic statute
(a) typically creates the agency and structure of the agency and authorizes that agency to
exercise certain powers or procedures (these procedures can be found elsewhere)
(b) agency only has the power given to it by the organic statute-no inherent power
3. History
a) Two main periods of creation were the 1930s and the 1970s
(1) 30s (New Deal)
(a) Agencies were created in the wake of the great depression (promote fair
competition)—agencies would apply their expertise to solve these issues
(2) 70s (rights revolution/public interest era)
(a) Agencies created general welfare statutes
i) statutory rights like right to clean air/water/anti discrimination laws/ workers rights
b) One main period of agency change in the 1980s
(1) Reaction to the 30s
(a) Fear that congress was granting agencies a blank check to change the problem
(2) Reaction to the 70s
(a) In the 70s agency discretion was not that broad;
(b) there was a question of were agencies participatory or representative?
i) perhaps poor procedures
ii) agencies were either pleasing themselves or small interest groups
(3) Reform in the 80s
(a) In the 80s the concerns were routed in theories of economics—
(b) Courts now seek more control of agencies
i) agencies are out of control—spend too much money for too little good
(1) Lead largely by the President (lead by Reagan)
(2) Congress can intervene more and courts too through judicial review; courts can
review agency decisions once they are final; and courts can look to see how
 other branches interact with agencies)
ii) about not looking carefully at cost and benefits of decisions they are making
(c) FUNDAMENTAL WORRY: the bureaucrats are not supposed to be making
decisions;
i) agencies hardly mentioned in the Constitution; enumerated actors from three
branches are supposed to make decisions and they are not.
(d) SOLUTION: We can have both: agencies and constitutional values.
i) Formal: Can we fit agencies w/n one of the existing branches?
(1) Most say within the executive branch
(a) Must be one of the president’s subjects
(b) Investigation as a preliminary stage to enforcing; In order to have law
enforcement, there has to be law
(c) They have a combined function (not purely executive or purely judicial)
will not fit with the model; in capturing his expertise then let him capture
all areas of the problem; more efficient
ii) Functional : Can agencies act in ways that comport w/n okay practice ways?
(1) The value we might want agencies to live up to are making the agencies
answerable to someone/accountability.
(2) Without accountability agencies might be counter to equality norms or due
process so concerned about how the agency exercises its power.
(3) Fair/rational v. arbitrary (favoring narrow groups)
(a) In 1946, Congress enacted the APA (administration procedure act):
govern how agencies exercise their authority; can be trumped by organic
statutes-this Promotes fairness
(4) Need planning and efficiency (the Constitution is woefully inefficient and the
legislature is slow b/c inefficiency is prized)
(a) The move for efficiency has slowed regulations; hence, deregulation; you
shouldn’t have to pay anymore for regulation than you have to—efficacy
(do better with what you have)
(b) May be also want transparency (this facilitates accountability; you have
to see what it does before you can do anything about it)
(c) May want a political balance (no domination); this can be Constitutional
ideals; hence SOP—divided powers-Multi member balance
(d) May want to make sure officials are qualified-Constitution requires that
most people are confirmed by the Senate
(e) May want to ensure that people are able to participate-More people are
involved, the easier it is to represent their interest (no direct
participation)-May want our input to be solicited
4. Examples of Agencies
a) FDA, EPA, Department of Justice, Department of
Homeland Security, National Labors Board, Securities and
Exchange Commission
5. Examples of Agency Work-Promulgating Statutes
a) No Vehicles in the Park Statute Example
(1) How is it organized? What do the provisions accomplish?
(a) Section 1
i) Purpose-why do we have it?
(1) Explains reason/purpose/aim of statute
(b) Section 2
i) Substance/Enforced-penalty for non compliance
(1) Operative Provision/Restriction-gives the rule; what you are forbidden to do;
substance; conduct
(c) Section 3
 i) Definition: clarifies the meaning of the words in the statute
(2) Many statutes are framed in the same way.
B. How Do Agencies Fit in the Constitutional Structure?
1. Three branches
a) legislative
b) executive
(1) agencies are grouped under the executive branch of government
(a) Constitutional Crisis: In theory an agency can only have the power the congress
grants it or the president gives it, but maybe not----hence the agencies are considered
the “headless fourth branch of government”
c) judicial
C. How are Agencies Structured?
1. Executive Branch Agencies
a) In General
(1) Located within the executive branch
(a) Run by the president’s cabinet
i) Headed by the presidential appointed Secretaries or Administrators
(1) President has the power of appointment with Senate confirmation) and
(2) At will removal
(a) removal (President can remove at will for reasons such as not liking his politics)
2. Independent Agencies
a) In General
(1) Limited removal (only for cause removal)
(a) Can only be removed only for specialized reasons such as malfeasance or illegal
activity or neglect of duty
i) Independent of Presidential plenary control
(1) President can have some ways of control such as putting a republican or
democrat as the chair
ii) Insulation from politics
(b) President still appoints head or chair with senate confirmation (usually gets this person
to push his policy agenda)
b) The Statutory Structure of Independent Agencies
c) The Constitutional Status of Independent Agencies
d) The Practical Legal and Political Significance of Agency
Independence
(1) Why have two different structures?
(a) Political
i) b/c Congress can in essence
(1) What does Congress gain from putting an agency somewhat at distance or
apart from the President?-Congress may think it gets a relative advantage
(a) Executive Branch listen more to the president since they can be fired;
(b) however, independent push back some so Congress’s ideas may be more
openly heard
(b) Law Professor Reasoning
i) Expertise over accountability
(1) Worried about their policies (distorting policies and statutory goals)---take
 them out of politics
(2) Political officials may have other things factoring into their decision making;
even if their decisions may not be the best ----short term interest
(a) Doesn’t hold for all independent agencies
D. What Functions Do Agencies Perform?
1. Develop and Enforce Regulations
2. Agencies that Adjudicate
a) Take the (NLRB) for example
(1) Special concern when agencies act like courts
(a) Due to separation of powers and due process we Do not want law makers to be
adjudicating because they Will just make laws to put you in prison
E. How are Agencies Organized?
1. Hierarchal Structure
a) Top
(1) At the top of the hierarchy is The top person is responsible for the final
output of the agency
(a) b/c of accountability; want to hold the decision maker responsible so we can blame
that person or credit that person
(b) also accountability can mean that the top decision maker makes decision on their
behalf (representation)
i) the head of the agency has to take control so we can improve performance; or fire
the head (President-comes in here; but only in executive branch agencies; not just
run against policy in independent agencies
F. How are Agencies Staffed?
1. Political Appointees
a) In General
(1) Hold Highest level positions
(2) Appointed by the President with Senate confirmation
(3) Required by the Constitution, statute, or encouraged by the Congress
(4) Ought to be the people that have political backing because this Enhances
accountability
b) Why important?
(1) These people make the policies that lawyers confront;
(2) you can better understand the policies by understanding the people
(a) you can learn how far you can push policies
c) How they get their job?
(1) The President is entitled to his or her picks;
(a) President must be able to stack the government with the people that he or she can trust
i) But not always b/c the Senate imposes breaks and limits
(1) Senate confirmation comes down to skills and political savvy
d) What is the average tenure of a political appointee?
(1) Tend to remain in one position for 2-3 years and tend to spend about 9 years
in the government overall
 (2) They want to leave on their own terms so they must pay close attention to
what the president thinks
(a) this Sounds like accountability but This interaction shapes the policies that political
appointees decide
(3) Beginning of new administration brings new people to offices
e) Removal
(1) Example: US Attorneys
(a) 7-8 were fired of these attorneys in the middle of the administration
i) what was the problem?
(1) Motive: removed b/c they clashed with political agenda
(a) The US Attorneys decide what cases to prosecute (wears away at the
President’s power over the US Attorney’s Office)-This clash should err in
favor of the President b/c of uniformity and b/c the president is elected
so we get political accountability (bureaucrats responding to the elected
imminent position of the President)-Allegation that the President wanted
the US Attorney’s Office to go easy on the Republicans and hard on the
Democrats (but this is allegation)
(2) This Seems to toss people off for partisan political reasons
(a) yet these actions are not illegal but very politically fishy
(2) Generally
(a) Once in office these political officials generally have the political right to stay in their
position as long as they do their job well
i) Not a legal right thought b/c President may remove political appointees at any
point for any reason
2. Career Civil Servants
a) In General
(1) Hired and removed by a non political practice
(2) Have statutory removal protections
(3) Tenure doesn’t shift with the President
b) Pros
(1) Most of the work for most of the law is made by people who have a special
civil service protection
(2) Hired through a non political process and can’t be fired for political reasons
(a) This is important b/c knowing about the career staffers can help you understand
policies
(3) These people are actually doing the work
(a) Example: office of management and budget (OMB)
i) They Review the executive cost benefit analysis
ii) This agency Still has a lot of career staffers that were hired during the Reagan
administration
(1) They have an old school view from what they learned when they got their
PhD’s decades ago so this helps you so if you are facing one of these people,
you can offer a countervailing analysis
(4) There are many of these jobs that are open to students fresh out of law
school
(5) There can be movement between the levels
(a) Serves as a check on the political layer; possess the institutional history for the office
in which they work; they may know more and are more responsible for what gets done
c) Downside
 (1) career civil servants tend to have a Narrow focus
(a) Aren’t looking out to see how areas of law, economics or science are changing
i) They Become very fixed in their position
(b) They are transient
i) Believe they possess the keys to their office
(c) Their positions are still subject to politics
i) Extreme Example: Office of Civil Rights during the Bush Administration
(1) Historically this Division in the department of justice responsible for handling
issues of race but the Bush administration sought to change this focus to
religion (historically religious issues were within the jurisdiction but was not
the focus)
(a) Case dockets began to change and this is:
(b) Bad b/c: 1-Not capitalizing on the employees expertise and 2-People may
have a sense of commitment to the issues of the agency (increase the zeal:
i.e: office of legal counsel have a passion for Constitutional issues)-so not
being able to do work that they are passionate about
(c) Good b/c: Nothing illegal about the transition to race, religion, and
gender-Must allow the President to feel the government will run well under
his administration
d) Main Point:
(1) there is a way for the President to step in and effect policy of civil servants
(a) Possible to take political appointees and make them career staffers to keep your
policies in place-Look for legal inroads

II. The Common Law As A Regulatory

Regime
A. The Limitations of Common Law
1. Historical Auto Safety Paradigm
a) Prior to the 1970s we did not have auto safety regulations;
(1) contract and torts set the law for auto safety
(a) So we could sue under these but why wasn’t this enough.
b) Problems with tort-common law
(1) Discretionary
(a) places the power in the hands of auto manufacturers, does not ensure safer cars
(b) Might not increase auto safety, depends on automakers and their cost benefit analysis
(c) Damages awards do not change products just that they change incentives
(2) Reactive
(a) It is not proactive b/c it waits for someone to get hurt
(b) The premise is that someone is always hurt
i) As opposed to legislation in advance
(3) Retroactive
(a) From the perspective of the defendant it is retroactive instead of proactive (do not
know you are wrong until you get punished and do not know how to ensure you won’t
be wrong again.)
i) notice is often lacking
(b) Common law is compared to dog punishment
i) Ex: how was Buick to know it was doing something wrong until they are punished
(4) Not comprehensive
(a) courts decide cases as they are brought
 (b) they do not craft rules that are good for future problems
i) Even if courts decide to do that, there is no guarantee that other courts/jurisdictions
will adopt
(5) Institutionally Limited
(a) Courts do not have access to other information other than what the parties bring
i) courts are institutionally limited
(1) Many of the problems are just in the nature of how courts are set up
(a) Limited access to data;
(b) Only have what the parties provide
(c) No where near what the regulatory process can provide
(d) Not experts on how to read the details
ii) Courts can only issue damages
(1) Tort is supposed to compensate with damages
(2) But what if someone dies?-Money may not be sufficient
(a) Then you can only provide the family of the decedent with lost wages
(b) Punitive damages are rare
(3) Still no enhanced auto safety
(6) Ambiguous
(a) They are notoriously difficult to decipher
(b) Statues can be difficult to read to but no complicated twist and turns
(c) Often it is hard to find the holding; you can be uncertain about what the common
law is actually saying (hard to find rule)
i) Even if you can formulate the rule, the courts often do not tell the defendant
what they have to do to change
ii) Statutes can be more specific (not crystal clear but they can take out some of the
guessing on the part of the defendant)
(7) Underinclusive
(a) Hypo: Respiratory Injuries from airborne pollution in the air each day while at work
i) Causation can be an issue in tort if you can’t prove pollution coming from the
company
ii) A latent or speculative injury is not the physical injury you must have in tort
(b) Tort is not good at regulating risk
i) As we extrapolate out into the public in general these non traditional people or
future generations
(1) Tort law can’t capture everything like environmental quality
2. MacPherson v. Buick Motor Co.
a) Old Rule:
(1) manufacturer’s restricted liability to only the retail dealer or distributor not
the end user (privity rule)
b) Reason for old rule:
(1) in the past the end user brought products directly to the manufacturer
c) Effect:
(1) this made tort law ineffective to others who may have brought from a retail
dealer and not the manufacturer
(a) Would not get heightened safety under the privity rule
d) Main Take Away
(1) Privity rule is abolished
(a) Had a big effect on auto safety b/c after MacPherson, Buick will have to pay
i) Does it actually improve auto safety?
(1) It might if: Buick developed heightened inspection
 3. Rotche v. Buick Motor Co.
a) Effect
(1) Buick developed improved auto safety
(a) Shows that Buick had more detailed inspection policies
b) Buick developed ways of avoiding tort liability
(1) But Buick could downplay safety claims, create warranties and liabilities
(to limit tort liability), more product liability insurance (becomes more
indifferent to judgments against it if held liable), changed structure
(2) This does not ensure change
(a) Depends on if there is a market demand for it
(3) In actuality it doesn’t improve auto safety but puts it at the owners
discretion and conducts a cost benefit analysis
(a) It could do nothing if the cost of the improvement is too great in comparison to
possibility of liability due to accidents
4. The Role of Courts
a) The World After Tort Law
(1) Judgment-tort law can bring increased safety as long as markets take
effect and competition kicks in
b) After MacPherson v. Buick Motor Co
(1) Auto manufacturers sell inspection as a fear
(a) Everyone will not get the reward of safer automobiles b/c you must have the extra
money to make the extra purchase
(b) Everyone will not get the reward You also need to know what 5 point or 10 point
expectation means; know what the change produces
i) Need access to information
ii) Need to be able to process information
B. Justifications for Regulations
1. Hypo Explanation:
a) Airbags-Would you pay for them?
(1) Most people will not; they think they are safe drivers; perhaps they need the
money for something else
b) Information
(1) Need to know what to demand
(a) Perhaps inspection: but how much?
(2) People who have information must be provided with an incentive to
give it to you
c) Unintended consequences
(1) Harm to self or others
C. Positive Explanations for Regulations
1. Overview
a) Information
(1) Need to know what to demand (access to information)
 (2) Be able to process information (technical expertise)
(3) Cognitive biases
(a) make it difficult to process info that would serve their best interest
(4) Are adaptive
i) Examples:
(1) Securities statues
(a) are disclosure and information statutes
(2) Freedom of Information Act
(a) Need to respond in a week but not necessarily provide you an answer
(b) Should the government intervene?-Differing view
b) Redistribution
(1) Redistribution or ability to pay
(2) Regulation can step in and spread the cost so more people can take
advantage of this
(a) Example:
i) Social security
ii) Healthcare
c) Collective Action
(1) The internet can take the pressure off collective action in the same way that
class actions can in tort law
(a) Example: Food Regulation (perhaps more food inspection or quality control)
d) Monopoly
(1) Statues that we can justify on the ground of monopoly
(a) Ex: railroads (rates can be so high that they bring economic waste)
(2) Too little competition can be bad
e) Destruction Competition
(1) Too much unregulated competition can be bad
(a) Ex: New Deal Economic Statues; Antitrust statutes
f) Public Goods
(1) Affects us more generally
(2) The kind of good that benefits all
(3) Have to spread the cost or too many free riders if you can’t prevent others
from receiving the advantages
D. Ex: National Defense, Clean Air, Clean Water, Highways
a) Externalities
(1) What economist look to identify?
(a) Your perfectly rational decision has effects on others?
i) Regulation steps in to fully take in to account the interest of others.
(1) Ex: Plant the pollutes; driving with no seatbelt (people have to take care of
you; insurance cost rise)
b) Social Justifications
(1) Sometimes we look to the government to provide us with certain rights
(opposite from paternalism)
(a) Ex: we want anti-discrimination in the workplace and schools or protection for
endangered species or clean water
(2) Paternalism: the government wants a society that looks a certain way
 (a) Here, the people want to filter their preferences into law through the people electing
representatives
2. Commemorative Biases
a) People act in irrational ways
b) Humans act in ways that are not in their best incentives
(1) Why?
(a) People do not adequately/properly value risks
i) i.e.-the risk of a plane crash in proportion to car crashes b/c we are not in control of
them
(1) we under value the risk of auto accidents b/c we are in control as the driver
3. Adaptive Values
a) Example-terror attacks
(1) after 9/11 the risk of those type of attacks really have not changed
(2) We value things to high is we have seen something horrific, risks to
children
4. Critiques of Common Law
a) Contracts has limitations
(1) In General
(a) K cannot always produce what we need to bring more auto safety
(b) So should the government step in or let you indulge in your own cognitive biases
(c) Maybe the people who work in government cannot either
(2) Critique
(a) But we have to justify moves off the status quo in order to get what we need
(b) SEC recognize that there are predictable incentives that mislead purchasers so statutes
step in and mandate disclosure to avoid fraud
i) If the problem is providing information
(c) Rational regulations/paternalism: the government stepping in to tell us what is in our
own best interest
i) If processing is not your car
(d) You need market power; b/c an individual refusing to buy something without others
similar situated; no change will occur
i) Problem of collective action
(1) On the tort side, class actions seem to remedy the problem
(2) On the K side, the internet could allow you to set up an on-line survey to show
numbers
ii) Free rider Problem
(1) This happens when the benefits are enjoyed by everyone
(2) no one can be excluded, when you provide something for one, then you
provide for all
(3) no one has a incentive to pay for it though everyone wants it
(4) this is seen as justifications for regulations and then the costs can be spread
thorough taxes
iii) A public goods problem
(1) i.e.-clean air or natural defense
(3) Market Failure
(a) Monopoly
i) Prices can be artificially inflated
ii) Creates economic waste
iii) Means no substitutes
(b) Destructive competition
 i) Too much competition (driving prices down, putting producers out of business)
ii) Can be a justification for intervention
(c) Externalities
i) Costs imposed on others
ii) Sometimes we do not recognize the cost of our behaviors when acting in our own
self interest
(1) Example: externalities from airbags
(a) if airbags are massed produced then the cost of supply is lower; your
refusal could drive up prices
(b) other people in the car might be hurt; other passengers
(c) cost of insurance could go up if you have to undergo major surgery
(2) I.e.-foregoing flu shots
(a) Imposing the cost on others who might get sick
(3) I.e.: moral offenses
(a) Should we care about this? Is this a valid externality?
5. Social or public arguments Even if satisfied with tort and contract common law
a) Example:
(1) Motivated a lot of anti discrimination statutes
(a) In terms of discrimination statutes, we know we are moving in the right direction.
i) What about harder questions?
(1) i.e.: physician assisted suicide
(2) Protecting endangered species
(3) Climate change legislation
(a) What if the politicians are not their yet?
i) Things on the cutting edge, do we expect governments to be leaders

III. Legislation
A. The National Traffic and Motor Vehicle Safety Act of
1966
1. History of 1966 Act
a) Political History Leading to enactment of the statute
(1) Initial Predictions: Auto makers will win and defeat legislation-statute will
not pass
(a) Reason: Automakers are the Most powerful interest group involved (have money for
re-election)-They had the most political clout with the congress and the
president-Public choice would say auto makers should be able to defeat legislation
(2) Actual Result: Auto makers did not win
(a) Reasons: 1-Public Awareness due to Ralph Nader’s book
i) Nader’s book put the problem of auto safety on the national radar
ii) He exposes a death trap
(1) Policy entrepreneurship
(b) Reason 2: Illustration
i) The people did not really rise and speak because they were torn on the issue-they
wanted safety but people did not want to think that government was taking over
their rights
(1) but legislation passed bill in spite of the general public sentiment
ii) Politician was out in front of the citizens
(1) People would eventually come around to see what was best for them
(paternalism)
(a) This could potentially be bad because when you give your power to an
 elected representative, then they can go away from your preferences.
Hopefully, they will make decisions that are good for the people in the
future
iii) Politicians painted a picture of a villain (GM) and the government as a hero
and the people as an innocent bystander
(1) People eventually came around
(a) However, politicians act at their own peril when they go against the people
(face the possibility of not getting elected)
(c) Reason 3: the main political player “Mr. Safety”: Abraham Ribicoff
i) perhaps he styled himself Mr. Safety b/c he was on a mission to add to his personal
profile or legacy (his own self interest)
(3) Justifications
(a) Legitimacy given to the statute by the President
(b) Public Regarding Rhetoric (all about selling the statue)
i) Bring Auto Safety Statutes in line with the Civil Right
(1) Catch Phrase: “every citizen has a right to auto safety”
2. Organization of 1966 Act
a) Citation
b) Purpose:
(1) Purpose Here
(a) “An act to provide…..”
(2) Purpose Section in General
(a) sets off an articulation of purpose by stating the purpose at the broadest level
(b) Will see the phrase “be it enacted” even if no stated purpose
(c) But followed by another articulation of the purpose
c) Title
(1) Title Here
(a) Title 1-Motor Vehicle Safety Standards
(2) Title Section In General
(a) Like chapters of a book
(b) Or individual stories in a compilations
d) Sections
(1) Sections Here
(a) Section 101. *Establishes the name of the act:
i) “National Traffic and Motor Vehicle Safety Act of 1966”
(b) Section 102. *Definitions Section
i) Every time you see these words in the statute refer back to this definition
ii) don’t use common knowledge definition
iii) These provisions only apply to this title
(c) Section 103.
i) (a) *Operative Provision or Substantive Provisions
(1) Guts of statute (heart and soul of statute)
(a) Delegates Power from Congress to Secretary of Commerce
(b) Assigns responsibility
(c) Gives vague guidelines
(d) States ambiguous the directions to the Secretary
ii) (b) *Procedures for issuing statutes
(1) Administrative Procedure Act (APA)
(a) Three Options: 1) Specific, 2) Specific and reference APA, 3) None at all
(in which the APA governs)
iii) (c) *Timing
(1) Changes default from one month to three months
 (a) Congress is aware that it would take auto manufacturers a while to get up
to speed.
(2) No longer than a year though (unless Secretary says more timing is needed)
(a) If given too much time it would under cut the purpose of the statute
(b) Congress has set up a mechanism to balance the interest
(c) Secretary can granted a petition to push out the effective date
iv) (d) *Effect on State Laws
(1) Normal Options:
(a) 1: Pre-empt state laws (push out state laws)
(b) 2: Savings clauses (preserve certain state laws)
(c) 3: Some have both pre-emption and savings clauses
(d) 4: Congress can say pre-emption is implied
v) (e) *Secretary has power of revocation
vi) (f) *States what the Secretary must consider when doing her job
(1) This is the normal broad instructions
(a) Gives the Secretary a lot of discretion (good or bad)
(b) Highlights the symbiotic or regulated relationship b/w Secretary/Congress
and the auto manufacturer (could give automaker lots of power and not so
much to the people)
vii) (g) *Effect on Federal Law
(1) Repeal of old statutes
(2) Some expressed provisions:
(a) Congress will repeal the hydraulic brake fluid act
viii) (h) *Another Deadline for issuing statutes
(d) Section 104. *Secretary must set up an Advisory Council
i) Council helps the secretary carry out the statute’s broader mission
(e) Section 105. *Judicial Review Prevision
i) Tells what happens after the Secretary issues a standard
ii) Can get a court to review the standard Even if a statute did not have a judicial
review provision with specificity, the APA does and that is the standard
iii) the only way the client can sue is through judicial review (usually goes to fed
district courts but not typically may go to the federal circuit)
iv) Section 110 and 111 show that you can sue for compliance
(f) Section 106.
i) Tells Secretary that he must conduct research, testing, or training
(g) Section 107.
i) Secretary interaction and collaboration with other Federal departments/agencies
and state agencies to develop standards and methods for testing
(h) Section 108. *Penalty provision
i) Contains the “no person” language
(1) Must comply but also issue notice and certification so that everyone would
know they are compliant.
ii) This has a reference to another section
(1) (4) Here it refers by number; it is vaguely self evident
iii) Auto manufacturers don’t have to go back and retro fit old cars already made (as
evidenced by part (a)(1))
iv) Does this apply to dealers?
(1) Yes; according to (a)(1) because it says “offers for sale”
(a) but it really unaware this act doesn’t apply b/c we must comport with
fairness and due process
(b) but if dealer actually knew certificate did not comport then the dealer is in
trouble (b)(2)
(c) If you bought in good faith and then sold, you are not responsible b/c you
did not buy to sell under (b)(1)
(d) If a foreign company does not meet standards, then the standards will not
be admitted into the country; but affected indirectly if a purely foreign
company
 (i) Section 109. *Actual Penalties
i) Fines
ii) Injunctions from the sale of cars
(1) jail for those who refuse to obey the injunction
(j) Section 110.
i) Tells what happened if car is found to not have met the standards
(k) Section 111.
i) Recall notices
(l) Section 112.
i) Authorizes Secretary to undergo inspection and investigation
(1) Gives Secretary to get lots of data and information (car manufacturer’s and
insurance companies often have this data)
(m) Section 113.
i) Certification notices
(n) Section 114.
i) Certification notices
(o) Section 115.
i) Congress gives Secretary sub-delegation power
(1) Secretary of Commerce delegates to Secretary of Transportation then another
agency but not it is with NITSA.
(p) Section 119.
i) Authority to issue rules
(1) Set power to issue, amend, and revoke regulations
(q) Section 120.
i) Secretary shall issue a comprehensive report
(r) Section 121. *Appropriations
i) Unusual b/c this statute came with its own funding for now and for future years
(1) Usually Congress gives all statutes money through other statutes
(s) Section 122.
i) Other Dates
(2) Title II-Tire Safety
(a) Section 205.
(3) Title III-Accident and Injury Research and Test Facility
(a) Section 301.
i) Secretary shall make a complete investigation or study or conduct research in
testing traffic safety at his discretion.
(b) Section 302.
i) The Secretary shall report his findings to Congress about areas of 1-inventory,
2-equipment, 3-facilities, 4-recommendations, 5-preliminary plans.
(c) Section 303.
i) Funds-may spend no more than $3,000,000 on this venture.
(4) Title IV-National Driver Register
(a) Section 401.
i) Secretary shall maintain a registrar or list of those in each state or political division
who have had their motor vehicle operator’s license revoked.
(b) Section 402.
i) Only Secretary can give information from the registry and it can only be provided
to the requesting party for the purpose of operator’s license or permit
(c) Section 403.
i) Definition of States and Territories Included
B. How to Read a Statute
1. Process
a) Step 1: Parse the text
(1) Consulted tools (dictionaries)
 (2) Malleability of text based arguments (not all are conclusory or satisfactory)
b) Step 2: Considered the purpose of the statute
(1) Yesterday it was clearly in the text (safety)
(2) Noted that was not always the case (could be environmental)
c) Step 3: Intent of the legislature
(1) could look at legislative history if paperwork were before us or if access to
those documents
C. The Place of Legislative History
D. The Structure of a Modern Statutes
E. The Components of Modern Regulatory Statutes
1. Operative Provisions
a) In General
(1) Drives the regulatory state
(2) Sometimes Congress shoes the specificity in lieu of delegation
b) Operative Provision for the 1966 Act
(1) Definition of “motor vehicle safety”
(a) “Means the performance of motor vehicles or motor vehicle equipment in such a
manner that the public is protected against unreasonable risk of accidents occurring as
a result of the design, construction or performance of motor vehicles and is also
protected against unreasonable risk of death or injury to persons in the event
accidents do occur, and includes non-operational safety of such vehicles.”
(2) Now we will focus on what “unreasonable risk” is
(a) A constant legal standard
i) Standard: legal term for a general directive; contrasted with rules: a crisp, hard
edged or concrete directive
ii) Congress can create a standard no matter whether or not it delegates responsibility
to an agency
iii) Most regulatory statutes we will encounter include an agency as the implementer
and a standard as the operative mandate
(b) Could do a balancing to determine an unreasonable risk
2. Implementation Choices
3. Specificity and Delegation
a) Political Science Approach
(1) Why Congress delegates?-political science approach (pg. 167)
(a) Consensus
i) The more words the harder to pass legislation
(1) Hence, congress usually uses broad words
(b) Expertise
i) Congress does not have training or knowledge of all the areas
(c) Time
i) The more time spent the less time to do something else
ii) Inefficient use of time
(d) Procedures
i) Legislative process is deliberately slow
(1) Makes it hard to pass legislation at all
(e) Election
 i) They want to get reelected
(f) Flexibility
i) Specificity rules out
ii) Allows room for change with new technology
b) Legal View: Schoenbrod, Rubin, Bressman
(1) Schoenbrod impression (pg. 163)
(a) Constitution reasons:
i) We have the separation of powers and vesting clause in article I
(1) Views this as a limit on Congress’s power to give legislation functions away
(a) Ensure lawmaking function is distinct from enforcement function (electoral
accountability)
(b) Ensure no tyranny: Problematic as the agencies move closer to the
President
(b) Normative Reasons:
i) Prevent arbitrariness
ii) Congress needs to write more specific instructions
(1) If no specificity, then no constraints
(a) Could be bad to the public
(c) Blame-shifting:
i) Delegation had bad effects on Congress and Promotes bad legislative behavior
(1) Can claim credit for solving a big social problem but avoid blame for the hard
consequences that may follow
(a) Congress strategies so that they can stay in office
(b) Want people to like them and avoid bad choices
(d) Impact on 1966 Act
i) The act doesn’t impose any of the hard decisions; the hard decisions come later
when the secretary or NITSA comes in
ii) Congress should be or needs to make hard decisions
(e) For Delegation:
i) He thinks there are different ways of reading the Constitution
ii) Congress is not literally passing the power when delegating
(1) Is it frustrating the legislative process by confusing representation and
accountability?
iii) Congress still has functions
(1) There are other means of legislative oversight
(a) Role in confirmation of agents
(2) There can still be accountability
(a) Blame the president who appoints the secretaries or heads over these
agencies
iv) Why would people celebrate president accountability instead of legislative
accountability?
(1) President is elected by a national constituency
(a) So relatively resistant to provokial powers
(2) Legislature
(a) Is more likely to be influenced by special interest groups
v) There can still be a check on arbitrariness
(1) Congress can watch and take away the agencies power by taking away the
statute
(2) President can watch
(3) Courts can watch
(a) They have the power of judicial review
(b) I.e.- section 105
(2) Bressman’s (Teacher) Article
(a) In General
i) Look to the agencies themselves
ii) Agencies are in a relatively good position to limit their own power
 (b) Information
i) Has access to more information as opposed to Congress
(1) i.e.-notice and common goal making
(c) Competence
i) certain people have expertise and skill in a certain area
(d) Disclosure
i) Agencies must tell us what they are doing
(e) Con
i) Agencies like other Humans are not usually going to surrender their own power
(1) Hard to self-limit
c) Political Science View: Epstein & O’Halloran
d) Synopsis
(1) Congress can delegate as long as it contains an intelligible principle in the
statute.
(a) Can delegate just about the full extent of its powers
i) This is seen in the 1966 statute
(2) Should it be okay for congress to draft the broad statutes or pass all this
power to agencies?
(a) Congress of ten has difficulties agreeing on a statute
(b) The more words, the harder for 500 some odd members to agree
(3) When it delegates, it has to monitor the agencies
(a) Make sure agency doesn’t diverge too much
(b) Congress engages in a cost benefit analysis to decide if it should monitor
i) When the cost of monitoring are less than the benefits of delegating, Congress
will delegate
ii) When an issue is very divisive, Congress will delegate to get consensus and then it
must bear the cost of monitoring
iii) Congress will generally not delegate when the President is of another party
(too high monitoring cost since the president will have a lot of control over the
agency)
F. Delegating Statutes: Legislative Strategies and
Techniques
1. The Basic Steps of Legislative Drafting
a) Who does the writing of the statutes?
(1) Varies from statute to statute
b) 1st-Where legislative history is created and by whom?
(1) Who initiates a bill?
(a) a member of congress
(b) The President
(c) Private interests groups
i) Typically act through lobbyist
c) 2nd-Observe how hard it is for a bill to become a law
d) 3rd-See how much power a legislative committee has
(1) once formed it acts through a committee
(a) bills are referred to committee based on jurisdiction
i) parliamentary determines which committee has to have principal responsibility
over the bill (weight of the bill)
ii) some committees will fight over the weight of the bill
 iii) chair of bill holds the most power within the committee
iv) most bills die in committee (only 1 in 10 bills make it out)
v) committee can veto
(1) refuse to send the bill to a subcommittee OR
(2) send to a hostile subcommittee
(2) process of discharge from committee
(a) need committee and need chair for bill to proceed
i) 1-bill can originate in the house or senate or concurrently
ii) 2-committee drafts the text and reports that travel to the full house
(a) reports is in narrative form and this is generally the only thing the full
house reads
(b) report is persuasive in terms of the act and individual sections
(c) the dissenting views are also included but we don’t know who wrote it
(d) it may be in essence what the full committee was voting on but it may be
full text
iii) 3-bills coming out of committee are placed on a calendar, but this does not mean
they will be considered
(1) budget or appropriations can be settled right away on other matters, there are
rules to give expedited consideration but there is another committee that
decides this they determine when and how it would be considered
(a) can be debated with amendments or with no amendments, can set limits on
the hearings
(b) votes are almost always along party lines which allow the bills are
considered-can end up with a veto hear
(2) senate is different; however the veto of a single member can threaten a
filibuster
iv) 4-If it makes it, then it can get floor consideration-there is debate and there is
amendment
(1) perfecting amendment: this will change the text slightly or very much
(1-saving amendment: trying to get more supporters; 2-rhyder:includes
information not pertinent to the main point of the bill; 3-killer: antagonize
more modest support; 4-amendment in the name of a substitute: replaces entire
language of bill)
v) 5-amendments to the bills
(1) perfecting amendments
(2) substituting amendments
vi) 6-reconciliation
(1) involves another committee or conference
(a) can be vetoed here
(2) can only address issues to which there is disagreement
(a) not about changing in any significant ways (controversial sometimes)
(3) Conference Committee Report
(a) Comes at the end of the process when the house and senate have both
looked at the document
(b) Should not find a whole lot in their about the points of agreements
(c) Very reliant source of legislative history
vii) 7-President
(1) president has ten days to sign the bill
(a) if he does not then the bill becomes law
(2) pocket veto happens if president hasn’t signed by the time that Congress’s
session is over
(3) there can be a congressional override to a veto but it requires the 2/3 majority
in both houses
viii) presidential signing statement involves the comments the president makes on
things he thinks should be improved
2. The Institutional Context of Legislative Design
 a) How the Legislative Process Works in Theory
b) How the Legislative Process Works in Practice
IV. Statutory Interpretation by Courts
A. A Classic of Statutory Interpretation
1. Rector, Holy Trinity Church v. US
a) Facts
(1) Holy trinity church (a new york church) sought to hire an alien rector form
England. The issue arises because there is a statute that reads “Be it enacted
by the senate and house of representatives of the USA in congress
assembled, that from and after the passage of this act it shall be unlawful for
any person, company, partnership, or corporation, in any manner
whatsoever, to prepay the transportation, or in any way assist or encourage
the importation or migration, of any aliens, any foreigner or foreigners, into
the US, its territories, or the District of Columbia, under contract or
agreement, parole or special, express or implied, made previous importation
or migration of such alien or aliens, foreigner or foreigners, to perform
labor or services of any kind in the US, its territories, or the District of
Columbia.
b) Issue
(1) Should the court read this statute strictly based on the words of the text or
bring in other mechanisms of statutory interpretation?
c) Rule
d) Analysis
(1) Look at the text-Could the text resolve the issue?-PLAIN TEXT
(a) Yes the text could resolve the issue; church can fall within the language (it is unlawful
for any person, partnership, corporation…in any manner whatsoever…..in any way
assist)
i) But the text argument in this case does not win.
(2) This case goes with the spirit of the law vs the text of the law.
(a) There is a sensible argument as well.-Says the text is old as dirt
(b) Making a workable law
i) Would congress want courts to depart from the actual language of the text when it
doesn’t make any sense or stick with it no matter what?-Here the court says stick
with the text-What did the court do here?
(3) Court cites Puffendorf, the words here are not the best indication of
Congress’s intent.-COMMON KNOWLEDGE
(a) The main issue is over the word “labor”
i) The congress could have meant “manual labor” b/c Seeing at the time, it could
have been the purpose or intent of Congress to prevent the influx of cheap manual
labor which takes away jobs from Americans.
(b) Either the word was too ambiguous or perhaps Congress did not anticipate this
situation.
(4) COURT LOOKS to the TITLE (PURPOSE)
(a) The court references the title of the act which reads “An act to prohibit the importation
 and migration of foreigners and aliens under contract or agreement to perform labor in
the United States, its territories, and the District of Columbia.”
i) The court reads the title to import the word manual to be a description of the word
labor.
(5) COURT LOOKS to the LEGISLATIVE HISTORY
(a) The court looks at the legislative history to see the evil that the Congress was trying to
remedy.
i) senate report
(1) you get the narrative
(2) court might find this quite illuminating
(3) perhaps the word was left out intentionally or perhaps the court though it too
obvious to include it
(b) The fact that the judge departs from the text shows that he was not a strict textualist but
rather probably a purposivist
(c) Why did congress not just include the word manual labor?
i) Some wanted to include the word manual labor because it would slow down the
passage of the bill
ii) Counter: perhaps if they could not agree on it, then maybe they decided they did
not need or intend the word manual to apply
(1) If it carves out individuals and are not included in the statutes
iii) Perhaps here the congress decided not to include academics or people who’s labor
was their brain Or want to prop up entertainment, artistic, or intellectual people
(maybe their was a lobby for these people who could articulate their needs)
iv) Religious peoples were probably excluded because life was lived with an
expectation that religion would flourish in the country-This was such a religious
country that it never occurred to Congress or anyone that this statute would even
touch religion
(1) But if Congress did not intend or think about this, should the courts?
v) Perhaps Congress was just trying to pass the bill quickly, they saw the problem of
cheap labor being a problem and they just wanted to quickly deal with it.
e) Conclusion
(1) Judgment reversed
B. Tools for Finding Textual Meaning
1. In General
a) Tools
(1) Text
(a) Dictionary
(b) Industry custom
(c) Performance material
(d) Textual cannons
(e) Substantive cannons
(2) Intent
(3) Purpose
(4) Evolving mandate
2. Ordinary Meaning and Technical or Legal Meaning
a) Nix v. Heddon
(1) Facts
(a) Vegetable=duty (no tax)-Fruit=no duty (no tax)
(2) Issue
(a) Is a tomato a vegetable or fruit?
 (3) Analysis
(a) Ordinary meaning=looked in several dictionaries
i) Dictionary
(1) Vegetable=gives examples peas, eggplants
(2) Fruit=the product of a plant that contains a seed
(a) Dictionary doesn’t resolve-so called witnesses
ii) Witness=experts in industry trade
(1) Establish industry custom
(2) No unified testimony; no specialized meaning
iii) Dictionary is a good start but go on to common meaning analysis
(b) Common meaning
i) Judge goes into its own interpretation
(4) Rule:
(a) General Rule: THE DINNER RULE
(b) If part of a mean at dinner, then vegetable
(5) Analysis
(a) Fruits normally go after as a sweet or as a topping to cereal in the morning
i) Why this rule?
(1) Courts are reminded that Congress writes for an audience
ii) Who was the audience?
iii) Botanical sense or other sense?
(b) Perhaps PURPOSE comes into play?
i) Protect agriculture of us farmers growing vegetables vs. fruits which only grow in
certain areas
b) Muscarello v. US
(1) Facts
(a) Statue that prosecutes anyone caught “uses or carries a firearm” during and in relation”
“to a drug trafficking crimes”-Concerned because there is a minimum sentence of 5
years for this offense
(2) Issue
(a) What is the meaning of “carries a firearm” in the statute?
(3) Analysis
(a) Two cases in which guns were in:
i) 1st glove compartment-2nd trunk
(b) LOOK TO COMMON MEANING-Two meanings offered
i) court likes the primary meaning “In a vehicle” better b/c
(1) In the dictionary and Bible so this argument is Saying the way we have used
carry in this primary sense since the beginning of time
ii) the Special meaning is-packing on the person-Says that it can also mean to carry on
your person, but it is not limited to this meaning
(c) LOOK TO PURPOSE
i) the legislature obviously realized that the combination of guns and drugs is bad
ii) the point is to say leave your gun at home if you are going to commit a federal
felony (from smith v. US- a prior precedent from this court)
iii) you do not want to escalate the situation
(4) Dissent
(a) The term is ambiguous so the substantive cannon rule should apply:
i) Applying the Rule of Lenity, the court should View ambiguous rules in favor of the
defendant
(5) Dissent’s Reasoning
(a) The majority overlooks the fact that for every dictionary and every book, there is
another or other instances in the same which gives another definition
(b) The majority does not accept that this is a grievous ambiguity enough to warranty the
rule of law
3. Cannons of Construction
a) In General
(1) Very popular tools for courts to use
(2) Cannons are not often very easy to detect
(3) Rules of thumb for picking out cannons of construction a court has already
used when you have a judicial decision
b) Textual Canons
(1) In General
(a) Appearance
i) Frequently have latin names
ii) Sometimes in quotations with a cite to a case
iii) A recitation of a principal that courts like or have used over time
(b) Purpose
i) Like rules of grammar indicating how people generally use words when speaking
or writing
ii) Congress knows courts will use them when interpreting so some legislate with
these in mind
(2) Linguistic, Whole Act, Whole Code
(a) Overview of Linguistic Cannons
i) Real and substantial effect
(1) If congress made an amendment, then it must have substantial purpose
ii) Absurd Results
(1) See if implementation of another perspective would lead to absurd results
iii) Nosictur a sociis
(1) Give the words in a definition essentially the same function as other words in
the definition, thereby denying it independent meaning
iv) Ejusdem generis
(1) Interpret a general provision in keeping with the specific term of the list
(a) Applies to list with catch all phrases
(2) Hard part is Whether you have a list
(a) Example: Ali case (pg. 225)-there Not a list b/c 1-Only two words (a three
word minimum) 2-Usage of the word “OR” instead of commas 3-Here it is
a disjunctive (Unrelated, dis-similar, Ex: apples or oranges)
(3) You need a commonality
(a) How are they similar?
(4) Effect: Tend to keep statutes narrow or together in keeping with one another
v) Rule against surplusage
(1) Don’t give words in a list overlapping meaning
(2) When people use words, they do so for a reason
(3) When congress bothers to put in separate rules in a list, each word has an
independent meaning)
vi) Expression unius
(1) The expression of one thing in one place means the exclusion of one thing
elsewhere
(a) Very popular cannon
(2) Need to know about inferences
(a) What is the best inference to draw?
(3) Can be used internally or nested with the whole act rule
(4) Special Application: Expressed Exceptions
(a) RULE: If a statute has certain enumerated exceptions Courts will be
reluctant to include any other exceptions
(b) EXAMPLE: Holy Trinity -There were already exceptions for artists and
lecturers but did the court effectively put the word ministers in the
 list-Perhaps Congress just had never thought about ministers but the court
did not invoke this cannon—the whole purpose of this cannon had nothing
to do with ministers.
(b) Overview of Whole Act Rule
i) Look at the overall purpose of the whole act
ii) See how the word is used in other parts of the statute
(c) Overview of Whole Code Rule
i) Look at the overall purpose of the whole code
ii) See how the word is used in other parts of the statute
(d) In Pari Materia
i) Principal: Latin phrase for construct provisions or statute on the same subject
together
ii) Similarities: Works in some of the same way as nositor or ejustem (has some if the
same sort of problems: are the words really related)
iii) Example: If interpreting practicable from the motor vehicle safety act, then look at
the word used in other areas and construe it the same
(e) Repeal by Implication
i) Will not read a provision that repeals or renders the other provisions or other
statutes null and void or of no meaning
ii) Legislative choice or judicial restraint
(1) Read to preserve the law in its current state
iii) Almost a separation of power notion
(1) Do not want courts to read in the way that makes them have legislative power
to repeal
(2) Also do not want to expand law by reading words such as harm in a way that
Congress could not have thought of
(f) Overview of Less Used Punctuation
i) In General
(1) Rarely are dispositive
(2) Usually are coupled with other cannons for consideration
(3) Most difficult where courts disregard commas
(a) Ex: Child Pornography Case-The court here ignored the comma and used
the absurd results cannon
ii) Types
(1) And vs. Or
(a) And is conjunctive
(b) Or is disjunctive
(c) Courts will start here unless it seems to move away from intent
(2) May vs. Shall
(a) May is permissive
(b) Shall is mandatory
(3) Last reverent
(4) Parenthetical
(a) Mean very little
(b) Sometimes a mere illustration as opposed to a specific definition
(g) GPS theory
i) Narrow then move to the broad
ii) Start with Linguistic side then move to substantive toolbox
(3) Textual Cannons in Action: Babbit v. Sweet Home Chapter
(a) Investment
i) Ruling against the loggers would have put them out of business
ii) Ruling for loggers could be bad for the existence of the spotted owl
(b) Fact
i) Endangered Species Act section 3 “makes it unlawful for ay person to “take” any
endangered or threatened species
ii) The Secretary specified take to include???????
iii) The definition section defines the word “take” “mean to harass, harm, pursue,
 hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct”
(1) The section breaks down “take” to give many more words to break down the
definition
iv) Section 9 is the operative provision (the one we are interested in)-it Gives a
pyramid structure in interpreting the final meaning of the words of the statute
(1) “take”
(2) “harm”
(3) “agency regulation”
(c) Issue
i) Whether the secretary has exceeded his authority in specifying the word take in the
statute?
(d) Analysis
i) 1st-Looks at the dictionary to find the ordinary meaning of the word “harm”
(1) This dictionary definition of “Harm” is so broad that of could encompasses
“significant habitat modification or degradation”
(2) There were other definitions as well and The dissent wanted harm to mean
“direction and intentional” application of harm or force
ii) 2nd-Look at purpose of statute
(1) Says that the broad dictionary definition is in accord with the purpose
(a) The court had already brackled with the purpose of the statute and that it
was quite broad (they find this in case law-TVA v. Hill)-They find that the
act would be ineffective if read too narrow
(2) The purpose is to protect endangered species applied on all land in the US and
Territorial seas. (in the past it was limited to protecting animals on certain
lands)
iii) 3rd-The 1982 amendment suggested that Congress understood the statute to
permit indirect as well as deliberate takings
(1) this is obvious because it let the Secretary issue permits for takings (or for
committing these acts of harming animals)
(2) Stevens says the court would not weight the economic benefit of the
development versus the preservation of habitat of endangered species
(a) So, permits are for incidentally taking a species for the purpose of normal
legal business activities so they will not go to jail
(b) loggers or others could incidentally take if they know in general you could
have an interaction with a species, so have process for handling this
problem
(3) Says that if the amendment were to only apply to direct takings it would lead to
absurd results-Says must give provisions real and substantial effects
(e) Dissent’s Analysis
i) Scalia says the majority’s broad interpretation is obviously not the Congress’s
intent or purpose of the statute
(1) Would congress really seek to think about designing language to benefit health
and sanitation or defense posed by taking-As a opposed to in a research or
study
ii) Justice Stevens asks, “Would Congress come up with a permit for direct takes?”
(1) Congress would never say your business is more important than endangered
species-Again trying to make sense of this incidental provision that Justice
Stevens uses as ammunition for his broad argument
iii) Scalia says that the court did not take on the definition of the word taking and was
saying that the purpose overall was general not the word take
(f) Conclusion
i) Holding is just the definition of the word in the statute we are interpreting
(4) Synopsis of Sweet Home
i) According to the majority, the Court of Appeals reasoning is flawed because:
(1) 1st-says that all words apply to direct harms
(2) 2nd-direct and intentional (could be indirect; could be knowing)
 (3) 3rd-chose wrong cannon of construction
(a) Court of appeals applied noscitur a sociis and they Should have used the
rule against surplusage
ii) Scalia’s dissent
(1) Scalia says it using whole act rule, then section five and section seven must
also apply
(a) Secretary has the ability to purchase habitat lands so Why don’t these
provisions suggest that habitats are covered otherwise-also they Gave the
federal government the ability to purchase lands to prevent significant
habitat modification-Hence section nine does not apply
iii) Stevens responds
(1) says that yea congress thought about it and says yea it would be cheaper to buy
up the land in advance-Congress is realistic and says that however sometimes,
it is cheaper to prosecute-This way the government can act proactively and still
ensure that government would take to warn
iv) Scalia uses another cannon
(1) Expression unius-Therefore, here inclusion of these provisions here means no
habitat modification elsewhere
(2) Scalia says that Stevens focuses to much on harm when the focus should really
be on the word take =Scalia knows something about take-From dictionary,
other statutes, common understanding (take has a meaning as “old as the
hills”)
(3) Old as the hills-Never changing, obviously, in new media, commentary
interpreting the English law, the bible
(b) The operative provision is general and is further specified by the definition provision
i) This leads to a fight between to beliefs of statutory interpretation:
(1) Scalia
(a) The operative provision controls and that has to color everything we say in
this case-We then look at the sub-definition of harm-Wrong for the word
harm to be a perversion of the word take
(2) Stevens
(a) He thinks when a word is defined in a definition section, then that more
specific meaning controls because the speaker is offering more
particularity
(c) TAKE AWAY FROM CASE
i) Cannons of construction
(1) Surplusage
(2) Noscitur
(3) Whole act rule
(4) Expressio unius
c) Substantive Canons
(1) In General
(a) Purpose
i) Used to interpret words in a statute but they reflect long held substantive values
ii) Reflect underlying substantive values
iii) Useful to court in deciding meaning after application of the textual tools
iv) Sort of a tie breaker
(2) Rule of Lenity
(a) view ambiguous statues in criminal statues in favor of the criminal
i) Reason: reflect Constitutional belief of the benefit of the doubt-notice and fairness
(3) Constitutional Avoidance
(a) Requirements
i) Step 1st-MUST HAVE AMBIGUITY BEFORE THE APPLICATION OF THIS
CANNON
ii) Step 2nd-CONSTITUTION QUESTION HAS TO BE GREAT
(b) Congress:
 i)1-Congress (courts attempt to avoid friction with Congress by creating a wide
zone/avoid even the risk of unconstitutionality)
ii) 2-Avoid limits on Congress’s authority (court wants to only decide as much law as
needed to decide the case: avoid making unnecessary law)
(1) Biggest thing
(c) Synopsis
i) Court will avoid a reading of a cannon to where it would render the
legislature’s statute unconstitutional
ii) An umbrella not attached to any one Constitutional or democratic value
iii) Here to protect all values
(4) Clear Statement (with application to Federalism)
(a) Court will not extend a statute beyond our borders without a clear statement from
Congress
i) courts do not want to act like the legislature
(5) Presumptions
(a) Like clear statements
(1) Presumption against preemption
ii) Reads the statute narrowly
(1) A preemption provision normally would push out state law
(b) Vindicate state interest
i) Will not pass out state law
(c) We don’t like to unsettle people’s expectations
(d) Presumption against extraterrestrial
i) Court will not extend a statute beyond our borders without a clear statement from
Congress
(e) Counter: argue that ordinary cannons ought to apply
(6) Federalism cannon
(a) Defend on normative or constitutional argument
(7) Remedial cannon
(a) Should be interpreted in light of that purpose
(b) Fixes a bad problem
i) Example: case about securities law
d) Scrivener’s Errors and Absurd Results
(1) In General
(a) Alike in that they sit between textual and substantive meanings
(b) Permit courts to do a little rewriting but not substantive values
(c) Apply in cases or ambiguity
(d) More like ordinary cannons not avoidance
(e) These cannons are not reached for first
(f) Textual cannons are what are reached for first
e) Criticisms of Canons
(1) For every cannon there is an opposite one to justify another end
f) Case Application of Substantive Cannons
(1) Zadvydas v. Davis (Constitutional Avoidance Case)
(a) Facts
i) Statute that says “90 day period in which to remove an alien”-Another statute
allows the Attorney General to keep the alien longer (problem is it doesn’t specify
how long or Reasons for keeping the person in custom)-just says Person “may be
detained” beyond the removal period
(b) Issue
i) How long?
(c) Analysis
i) Alien’s counsel says Language must be read in such a way that shows only when
 “reasonably necessary to remove” the person from the country
ii)
Attorney General’s position is that the statute allows Whatever we say but the
period Can be indefinite and can be permanent
iii) Literal textual meaning-Maybe be detained says just that and no more-AG gets to
say how long-This is bad for the alien-so the alien’s counsel must get away from
this reading that’s why he goes to a cannon of construction
iv) Cannon application-Substantive cannon-constitutional avoidance-steer away from
a possibly unconstitutional construction if a constitutional construction is
available-here there is a due process worry, so we should maneuver away from this
reading-the court says that this is a prudent maneuver b/c of constitutional
wealth-available only when the statute is ambiguous in some respect
v) other option non chosen-unconstitutionality construction-if a literal construction
makes the statute unconstitutional, then the court should not use that construction
-since we should presume that congress passes statutes that on their literal
construction-if Congress had written another statute saying “may be detained for as
long as the AG desires or indefinitely”-then the court would have no choice but to
address the constitutional question
(d) Conclusion
i) Constitutional avoidance has other purposes (the court feels that it owes something
to the Constitution); but they are saying that if Courts had to decide they would say
that the AG does not have this broad powers because it violates due process-If this
clause vindicates the Constitution, the court is vindicating the due process clause
by avoiding the issue-If the law is going down, then the cannon of constitutional
avoidance is helping Congress
(2) Almendarez-Torres v. United States (Constitutional Avoidance Case)
(a) Facts
i) Two provisions: A-if deported and come back you can go to prison for 2 years or
B-if deported and come back after committing an aggravated felony, then you can
be imprisoned for up to 20 years.
(b) Issue
i) Is this a new crime or a further punishment?
(c) Analysis:
i) If separate crime then it should be in the indictment-If this is just additional
sentencing then elements does not have to be in the indictment
ii) Court says that it is additional sentencing
(1) Tools of statutory interpretation-One crime with two different penalties in
separate places-Court looks to title-The title is “Criminal penalties for re-entry
of certain deported aliens”-Legislative History-Risk of Unfairness-Here it only
is subject to the preponderance or the evidence versus in a new crime, the
prosecutor has to introduce evidence (which would ultimately be prejudiced
since showing that a person has been deported would unfairly biased the court)
to prove under the heightened beyond a reasonable doubt
standard-Constitutional question-Whether it is okay for the judge to finding
these sentencing factors can simply be decided by the judge with a
preponderance of the evidence instead of being sent to a jury to find beyond a
reasonable doubt.-Might not be okay to deprive the juries the right to evaluate
the facts of sentencing.-The SC court said it is okay to bring in the regulatory
state in sentencing; but some sentencing factors also, have to go to a jury (this
seriously undermines the administrative state)-Constitutional avoidance-Here
the court avoids dealing with this question because there is not a grave matter
here-“Simply because the courts have yet to resolve a question, doesn’t mean
that it is sufficiently serious”-“Must be virtually certain that under this
interpretation it is unconstitutional, then it will use the doctrine of
constitutional avoidance”-There mere existence that a constitutional question is
unsettled, doesn’t mean that it automatically has to use the constitutional
avoidance doctrine.
(d) Conclusion
 i) Affirmed; It is a enhancement penalty provision not a separate crime
(e) Dissent
i) Scalia said he can invoke the constitutional avoidance doctrine-He says that when
he interprets the statute, he only looks at the text (the other stuff is garbage)-This is
a grave constitutional issue-the dissent also says that the general language is
ambiguous and not as clear as the majority thought (the majority also read this to
say something different as well)-Titles: He says the title can be disregarded
because it seems as if the title is a mere label; it does not include enough to
override the operative provision
(3) Gregory v. Ashcroft (Clear Statement Rule Case)
(a) Facts
i) State Law: mandatory retirement for judges-The ADEA makes it unlawful for an
“employer” “to discharge any individual” who is at least 40 years old “because of
such individuals age.”
(b) Issue
i) Whether judges are within the meaning of employee in the ADEA?
(c) Rule
i) Clear statement rule:
(1) In cases that involved the balance between federal and state governments, we
require a special requirement of Congress having a clear statement on that
result.
(2) Congress must clearly indicate that state rights are gone or the courts will not
violate state rights
(a) The court will not shop for ambiguity.
(d) Reasoning
i) Vindicate federalism values
(e) Analysis
i) Judges are an uncomfortable fit
ii) Too high a stake to take on another interpretation that they are not 100 percent sure
of Congress’s intent
(1) Here this is a really, really grave constitutional question so the burden is shifted
back to congress
(a) Therefore the reading is very narrow
(f) Conclusion
i) This does not apply to judges
(4) Santos Case
(a) Facts
i) About federal money laundering state
(b) Issue
i) Whether proceeds means “Receipts or profits”?
(c) Analysis
i) Starts with text, moves to multiple dictionaries (can support either receipts or
profits—not tenancy to favor one or the other), goes to whole code rule (looks at
the whole criminal code and finds no definite meaning); the rest of the act, other
textual cannons do not work-Says stuff that comes later cannot be
probative-Invokes the rule of lenity-When Congress leaves to the Judiciary the
tasks of imputing to Congress an undeclared will, the ambiguity should be resolved
in favor of lenity.-Looks at purpose-Definition depends on which ever
interpretation we accept
(d) Conclusion
i) Scalia gives majority opinion
(e) Dissent
i) Alito-Looks at text-Primary meaning is receipts-Absurd results (will not be the
first canon that court reaches for)-Merger problem-Combine two different
sentencing guidelines (scalia thinks that this an a bad option to avoid the merger
problem)-Alito responds-Thinks the merger might be okay-Any conflict can be
fixed at sentencing-Might be places where the merger is helpful-Merger is
 interpreted by understanding of promotion-Justice Alito is positive that it means
receipts and not profits so no ambiguity-Whole Law Rule-State laws, international
treaty-All use the same definition of receipts-Common usage and understanding
C. Tools for Finding Legislative Intent or Statutory Purpose
1. Overview
a) Legislative History
(1) most often used to discern something "actual"
(2) usually used to find either the intent or the purpose.
(a) The difference between intent and purpose is with level of generality.
i) Intent: examines the specific provision under question
ii) Purpose: asks what was congress aiming at when it enacted this law or
statute?
(3) Legislative history can be used to construct any intent based or purpose
based argument.
(a) There is a bit of a hierarchy to the sources of legislative history. Some pieces of
legislative history are deemed to be more relevant/more reliable than others.
i) Need a general hierarchy and specific hierarchy
2. Sources of Legislative History
a) General Hierarchy
(1) Committee conference reports
(2) Statement authors
(a) They write the bill
(3) Statement of sponsors
(a) They put the bill before Congress
(b) Statements get included in the record even if the sponsor’s statement is not familiar
with any members of Congress
(4) Statement of supporters
(5) Statements from the executive branch
(a) Agency interpretation (this is one we will go over)
(b) Exchange of letters from the attorney general
i) Attorney general comes from agency (department of justice)
(c) Might have a presidential signing statement
(6) Statements of the losers/or opponents
(7) Other statutes/legislative history
(a) Why would other statutes be at the bottom of the chain?
i) Less comfortable drawing provisions further away from the act
(1) Maybe it was different other authors with other intents
ii) Inferences can become more attenuous
(1) When?
(a) The legislative history contradicted the textual reading of the statute
(b) Context specific (statute to statute)
(c) Sometimes they will follow the legislative history even when the text will
clearly give you a different end
(b) When use legislative history?
i) Will use this after they come to a textual opinion to find support
ii) If the legislative history contradicts the textual view, then this is a hard case
iii) Courts use legislative history to break the tie if they are not sure but the scale is
equally balanced in terms of the meaning
(1) Sometimes courts also use substantive cannons in this way
3. Legislative History in Action
a) Montana Wilderness I
(1) Facts
(a) Burlington Northern owns land in a checkerboard pattern that is landlocked and needs
permission to get out. A suggested remedy is if they can't get the road, then they can
swap their land with similar land that is not landlocked. BN does not want this option,
so the battle between them and the Environmentalist begin.
(2) Analysis
(a) BN's argues they have an Easement by implication. BN says they were given implied
right when they got the land. They also say they have an grant of access by statute
under the Alaska National Interest Lands Conservation Act. Under Sections 1323(a)
the Secretary of Agriculture: can provide access to non-federally owned lands
surrounded by certain kinds of federal land owned by the "National Forest System";
Under 1323(b) the Secretary of the Interior: can provide access to non-federally owned
lands surrounded by certain kinds of federal "public land under the Federal Land
Management Act (FLMPA). Using the plain meaning rule, Burlington Northern argues
that section 1323(a) grants them access to their land since "National Forest System" is
not restricted to lands in Alaska but rather applies nationwide. BN concedes that
section (b) is restricted to lands in Alaska.
(b) Court looks at the Dictionary but there is no definition there since “National Forest
System” is a label. Using the US Code there is no general statutory definition. The
actual FLPMA is the first to use the term, but is different from the Alaska Act, so can't
use as a result of the cannon in pari materia. The court looks to "other indicia": Title V,
which is labeled "National Forest System", but in context deals only with Alaska lands;
using in pari materia, the court construes 1323(a) and 1323(b) together. Since (b) is
confined to Alaska, (a) should be as well. However there is a counter by way of
surplusage argument noted in the footnote; it says 1323(b) would be redundant when if
1110(b) takes care of all Alaska landholders. Therefore the as of now, the Text is clear
here. But now the court just checks the legislative history to make sure that they have
the language right and to confirm the interpretation they have reached.
(c) Burlington Northern's argues using the committee report’s reference to Utah case,
indicating a nation-wide access problem (i.e., not limited to lands in Alaska); But the
court discounts this argument because: 1) concede that the problem is indeed national,
but congress' solution is local, 2) legislature is silent on this point: it doesn't mention
"nation-wide"; The court would have expected congress to say something if it was
meant to be applied to the country as a whole; Nevertheless, the court is drawing an
inference from congress' silence. Since in the words of Sherlock Holmes "the dog
didn't bark" then perhaps the best way to pass the act was to leave the language
vague or susceptible to two meanings and let the court to decide later. Thus the Court
finds the report irrelevant as a result of this silence; Court looks at the sponsor’s
statement. Sen. Melcher's remarks said it was intended to be "nation-wide", but the
court deemed this statement unreliable b/c his statement came after the fact. The court
worries about strategic behavior from post-enactment statements. Court then looks to
legislative history from the House but only Representative Udall's statement is
supportive of government's argument; Udall was not a committee member and other
representatives say it applied nationwide, but they're discounted b/c they're individual
opinions. The court seems to be totally contradicting itself here. Finally the Court
discounts the executive statement saying that the Attorney General conducted little
analysis. Ct goes back to textual analysis, saying the trade provision falls victim to
repeal by implication, to justify its ruling.
(3) Rule
(a) When the text is clear, the textual or plain meaning controls.
(b) In order for legislative history to count as a valid method of statutory interpretation it
has to be:
i) 1-Relevant AND
 ii) 2-Reliable as indicative of Congress’s intent.
(4) Take Away
(a) This case highlights judicial manipulation and the battle of legislative history. The
court can seemingly pick and choose which cannons it wants to use.
b) Montana Wilderness II
(1) Facts
(a) Same as above
(2) Conclusion
(a) Legislative history forces the court to reverse itself
4. Criticism of Legislative History
(a) Weaknesses/ Critiques
i) silence
(1) Problem with legislative silence
(2) Sometimes a report doesn’t say something and sometimes this is meaningful
(3) Legislative silence speaks volumes
ii) Ambiguous
(1) Sometimes they are not all that helpful
(b) Idiosyncratic view
i) Not relevant in a sense
ii) Not reliable because the author of the sponsor is knowledgeable; they still have
their own views
iii) Not interested in the author per se but interested in the author reflecting something
about Congress
(c) Legislative History
i) Home people will be fooled into following this so you can get your way
(d) Executive Branch is not Congress
i) Agencies are not contrived of members of Congress
ii) If they represent anyone’s views it may be the President’s views
iii) President’s intent should be relative (he approves the bill but doesn’t write the bill)
iv) Presidential signing statements are not law
(1) If he wants to be active, the President should just veto the bill
(e) Statement of losers and Statement of supporters
i) May not be reliable because they represent both extremes
(1) Those who really love the bill
(2) Those who really hate the bill
ii) Courts are aware that the opponents legislative history is not reliable; sure they are
non representative of the whole congress
iii) Courts don’t likely tell you about how the sponsors are equally unreliable
D. Tools for Accommodating Change Circumstances
1. Application of Changed Circumstances Doctrine
a) In General
(1) Sometimes courts in interpreting statutes will be impacted by changed
circumstances
(2) Different from other tools because not so attached to the enacting
legislatures
(3) Courts consult this after they have made a decision?
(a) Another thing that lawyers and courts use in interpreting statutes
(4) Permits judges a lot of discretion to produce evidence of a change in times
(a) Forced to make some sort of judgment when it comes to changed circumstances
(5) Legislative history also gives the judges a chance to shop
 (a) But at least it is their
(6) You need discrete and abundance evidence of change
(7) Some terms are not dynamic and for courts to try to apply changed
circumstances if wrong
b) Role of Time
(1) Courts are on firmer footing the older the statute is
(2) Evidence builds the more time you have-Need time for evidence to build
(a) What difference does it make for a century to pass versus a decade?
i) Updating the word carry in such a small window of time
(b) You should be very suspicious if a lawyer is trying to advocate a changed circumstance
too shortly after a statute has been implemented
(3) “The older the statute, the looser the footing”
(a) But at the same time if a century or long time has passed, the there is more time for
Congress to respond
(b) If the legislature has not changed the statute, then why should the court
(c) Maybe a wasteful formality for Congress to step in if the agency is getting it right
2. Bob Jones University v. US (Changed Circumstances Case)
a) Facts
(1) Issue over IRS Revenue Code Provision 501(c)(3) which gives Tax exempt
status for religious, charitable, and educational organizations-Section 170
says Personal donations to charitable organizations give tax payer relief
b) Issues
(1) Whether Bob Jones can still qualify since it practices racially discrimination
in its admissions?
c) Rule
(1) No tax exempt status for Bob Jones b/c racially discriminatory education
practices are against or contrary to public policy.
d) Analysis
(1) Looking at statutes in historical view
(a) Common law conception
i) Charity (we understand what it means for an organization to be a charity and we
read that in our understanding of the statute)
(2) Problem
(a) Bob Jones is a charity within the plain meaning of the statute because it is an
educational organization
(3) Court and IRS Response
(a) Common on: this is against public policy; things change
(b) Using Purposivism the Court says that this is within the plain understanding; so the
Court is reading the statute in terms of its common law understanding
e) Conclusion
(1) What constitutes a charity changes with time (when you look at the
dictionary in fact it has changed over time)
(a) Bob Jones was once considered a charity but as things changed, Congress got more
uncomfortable-Here society’s views on discrimination changed-Social attitudes has
changed despite no constitutional-Why not Constitutional convention? too Time
consuming, decides to just go with the IRS -Nothing wrong with the statute because
 the IRS was interpreting it to keep in touch with the changing of the times-It reads
congress as wanting the statute to evolve and acquiescing in what Congress has
done-Courts must endorse the views of the Congress (Faithful agent rationale)-Courts
are generally uncomfortable with relying simply on legislative acquiescence-Here
there was something more/lots of evidence of changed circumstances-Here there is
proof that Congress was actually thinking about the issue=hence the civil rights
movement and the fact that there are other statutes on other subjects dealing with
racial discrimination and other cases such as Brown v. Board and the executive
branch action to enforce non-discrimination
E. Theories of Statutory Interpretation
1. Intentionalism
a) In General
(1) Recognizing the intent of congress as to the specific phrases
(2) seeks to understand the intent of the enacting congress
(a) will look beyond the text and textual aids
(b) will stick with sources that still to find the purpose at the time of construction
i) will not look to contemporary times
b) History
(1) First times judges attempted to offer publicly a visible view
c) Purpose/Goal
(1) What is the original or actual intent of the legislature as to this particular
word or phrase in question?
(2) Works very close to the word or phrase in question?
(3) What the enacting Congress meant not what was meant by the enacting
legislature?
d) Tool
(1) The principal tools are the text and legislative history
(2) Not divorced from ordinary meaning
(3) Start with the text (or ordinary meaning) but then consult the legislative
history
(4) Many intentionalist will favor what I meant as opposed to the ordinary
meaning
(5) Think they are acting as faithful agents of Congress
e) Normative Advantages
(1) Legislative Supremacy
(2) Democracy
(a) If the goal of statutory interpretation is to give effect to what Congress did,
intentionalist sometimes thinks that means intent goes
f) Criticisms
(1) Can pick and choose whose view/intent counts
(2) Pg. 329: Is collective intent coherent?
(a) Could all agree in principal on a goal or aim but we might in our head have vary
different meanings we ascribe in our head
i) Ex: Lets all go to Starbucks and have coffee on me?
(1) Some think this means they can get tea or hot chocolate
 (2) In reality this symbolizes the belief in some people’s head that we could just
take a break
2. Purposivism, Legal Process, and Imaginative Reconstruction
a) Purposivism
(1) General
(a) looks at what Congress had in mind; what did they have in mind to do
(b) find out the meaning using the same tools of
(2) Goal
(a) What is the purpose that Congress sought to achieve this language in this statement.
i) Purposivism does not require courts to search for legislative intent as to a
particular phrase
(1) It operatives off a higher level of generality
(a) Statute wide, provision specific
ii) What is the evil or the goal Congress sought to address or remedy?
(1) What did congress have in mind when it passed the statute?
iii) Conceptually it is very distinct but in practice very common to intentionalism
(3) Advantage
(a) Fidelity to Congress (same as intentionalism)
(4) Tools
(a) Same
i) Relies on legislative history
(5) Criticism
(a) Public Choice
i) Does congress have any purpose besides keep its members in office
(b) Response
i) Harton sacks (scholars in the 50s) came up with a different view:
(1) Purposivist will be looking for the purpose that a reasonable legislator
sought to reasonably pursue in a reasonable period of time?
(a) Ex: Why would a reasonable person want copy to start her day?
ii) Justice Breyer, sometimes Alito, and other SC Justices are keen on this purpose
because this is what they studied while in law school.
(c) Personal Views
i) Excuse for justices to fabricate their own opinion
(d) Response
i) Purposivism is a response
ii) Judges are rationale but maybe not reasonable
(e) Judicial Discretion
i) One you move away from enacting congress it frees you up to do something
different
(f) Response
i) More constrained than traditional intentionalism
ii) More filtered through reasonable person filter
(g) Critique Explained
i) Social choice theory (more economic oriented) and public choice theory (more
political science oriented)
(1) Interchangeable for our purpose
(2) Cycling critique
b) Legal Process
c) Imaginative Reconstruction
(1) In General
(a) In pursuit of legislative supremacy
(b) Courts must put themselves in the shoes of the congress
i) What could congress have said if it were asked directly about pastors?
 (c) It accurately captures the problem in statutory construction
(d) Could be some applications that materialize very early
(2) History
(a) Has been around for a while
i) Example: The court in Holy Trinity
(1) Congress could have envisioned ministers but they did not
(b) Really it was Judge Posner who gave us this theory
i) Frequently you encounter a statute that does not get you where you need to go
ii) So judges can reason by analogy by things Congress did include in statute to
determine the outcome on the things it did not include
iii) Ex: you go to Starbuck but they are out?
(1) If you had considered this delay what would you have wanted me to do?
(a) Would you have wanted me to wait or would you have wanted me to get
some coffee elsewhere or get you some tea?
iv) Reason by analogy
(1) Yes a fiction but not a gross one
(2) Once courts are imagining, then we can imagine
(a) Why not think about processes that promote predictability?
3. Textualism and New Textualism
a) Textualism
(1) In General
(a) interpret the words as written
i) will rely on text and textual aids
(2) Goal
(a) Courts to determine ordinary meaning of the text in context
i) Text
(1) They may look for a specialized meaning if the text says that one might be
used
(2) Look at industry meaning/custom or dictionaries
(a) They are not prohibited from looking for specialized meanings
ii) Context
(1) In context encompasses:
(a) That lead you to whole act or whole code
(b) May lead you to think about the time
(2) Will not probe the legislative history
(a) Gathering from common knowledge
(b) Advantages
i) Normative
(1) Faithful Agents of Congress
(a) Claims that its judges best serve Congress because Congress wrote the
words PLUS
(2) Agents of Law
(a) Textualist Judges best serve the law because only the text is law
(b) This is the constitutional point or constitutional underpinning
(c) Constitution requires that the only thing to be considered is the law b/c
Only the text passes through the legislative process
ii) Realistic about Legislative Process
(1) Consistent with public choice and social choice theory
(a) Perhaps had no intent that was coherent, the process is messy and chaotic,
the text may reflect the deal done
(b) Argument on using the text-What ever was necessary to get the deal
done-That minimum is all they could agree or settle on
iii) Perhaps Efficiency
(1) Courts and lawyers are relieved of having to shop through the legislative
history
 iv) Perhaps Legislative Efficiency
(1) Congress would know how statutes are interpreted
(a) Lower the menu, so Congress can anticipate where courts will go
(2) Textualism is the most constrained
(a) All Congress has to consider are the words
(3) Tools
(a) Textual tools and no more (start with the text and end with the text)
(b) Looks at Constitutions and the text
(4) Criticisms
(a) In General
i) textualist falsely assume-other theories don’t say that legislative history is law but
even when the text seems plain that is still judgment-no word is self-interpretive
(b) Public Choice argument
i) Intent is incoherent-Makes no sense to look at intent (it is a waste of time)
(c) Social Choice theory
i) Problem of cycling-If this is right, textualist are also right (makes no sense to look
at other things)
(d) Textualism is more constrained than other theories-Not always picking and chosing
their friends-I.E.- Montana Wilderness is out
(e) Textualisms permits judges to use bad cannons
i) i.e.- absurd results cannons-i.e. scribbners errors-all these allow the courts to
rewrite statutes
ii) Substantive cannons-Long held but free standing from the text-Yet, all textualist
judges use substantive cannons
(f) textualist claim to be better at constraining judges
(g) Forces Congress Produce More Law
i) Promotes legislative predictability and no unreliability-1-textualism gives congress
a clear rule against what to legislate because they know these judges will look only
in the text-good for congress-2-when congress knows it has to put all the choices in
the text, there is more legislative law making and more specific statutes (assuming
Congress wants its preferences to control)
ii) Effect-Might be a non-functional legislative process-Less legislation-Collective
action problem-Textualism is not the only theory-Rules out Practicality of
judging-All justices need to agree and this is nearly impossible-If court decided to
collectively agree it might shut down the legislative process or require other
reinforcement
b) New Textualism
(1) Coined by Justice Scalia
4. Dynamic Interpretation
a) In General
(1) This happens when courts have to make modern day updates
(a) Make old statutes work for modern day circumstances-seeks to update a statute in light
of the contemporary circumstances
(2) In General
(a) Partners with purposivism (as seen in Bob Jones)
(3) Goal
(a) More about courts acting as partners with Congress-Judges pick up the ball and carry it
further along because Congress would want its law to have a long lasting impact-Not
fixed in time-About the relationship between Congress and courts-Not a slavish
adherence-Does much better with statutes that are clearly broad (Really takes off in the
agency context)
(4) Tools
(a) Changed circumstances (i.e.- Bob Jones)
 (5) Advantages
(a) Some statutes seems like they should evolve over time-this Makes law sensible and
workable over time
(b) this is good because 1-Interpreting statutes non statically might better reflect Congress
and their Nature. 2-Notice-Should interpret with the expectations of societal norms
3-Intergenerational consistency-Synchronic coherence-People will rebel if this is not
true 4-Laws should reflect congress
(c) In order for this to be true, they Must show that it is appropriate for courts to do the
updating-Why?-Because actual cases arise-No fixed rule that says courts cannot
partners up with Congress-It is okay and desirable for courts to decide the continuity
over time-It is an alternative theory and it might be a desirable one
b) Dynamic Terms
(1) No fixed meaning
(a) Ex: employee
i) Are independent contractors employees?
(b) Ex: charity (Bob Jones)
i) Good common law root “old as dirt” but that understanding has evolved over
time-seems to have double meanings
(2) interpret it in a static faction (or its ordinary meaning)
(3) if court has a dynamic term it must find something else
(a) identify evidence of changes in the world
i) *(a) things not just internal to the judge themselves but in line with prevailing
social attitudes
ii) *(b) legislative acquiescence in an agency interpretation
iii) *(c) other government actions in general area
(1) other status
(2) judicial decisions
(3) executive actions
F. Positive Descriptions of Judicial Behavior
1. Practical reasoning
(1) 1-practical reasoning (pg. 362)
(a) judges act pragmatically
(b) No grand theory
i) 1-thinks that judges are using theories as window dressings-not actually how they
are deciding cases but rather using these theories ex-post to justify their
opinions-They just use these to style the opinion in textualist
ii) 2-You can’t believe those judges who say they are textualist or purposivits-In
actuality they use their own personal web of beliefs
iii) 3-Judges can only see statutes but from their own eyes or their own
lens-Permaneutics-What the legislators puts into it and what the judges takes away
from it (Statutes + interpreter= interpretation)
iv) 4-Suggest that judges engage in a disciplined identifiable process that is not merely
ideological-Courts have a web of beliefs about the roles of statutes in the world
(c) If the text cuts against the legislative history what does practical reasoning tell us to
do?
i) First-Before they get to “funnel of abstraction” they use their cable metaphor
versus chain metaphor (pg. 367)
(1) Cable metaphor-Cable is only as strong as its weakest cord
(2) Chain metaphor-Chain van be broken if any one link is destroyed-Cable
metaphor shows why judges always starts with the strongest thread in the
cable---the text
ii) Second-Hermeneutical circle (pg. 366)-It is holistic but more process oriented
iii) Third-Preunderstanding-Judges make decisions based on preunderstanding
 (1) This in not illegitiment-Just how people work from word to facts-Take
preunderstanding and compare it to each tools in funnel
(d) LOOK AT ALL CUMMULATIVE ARGUMENTS
i) Even if text supports the point Try to make other arguments based on other tools
Because getting more judgment involved at each level (even with the text)
ii) 1st premise: judges do not hold these grand theory-judges actually decide cases
according to the process described using very complicated analogies and tests
2. The Attitudinal Model
a) 2-Attitudinalist (pg. 368)
(1) In General
(a) Think judges are making decisions really according to their own ideology
(b) Ex: In Gregory v. Ashcroft, court said it was ambiguous but did not hold that judges
are presumptively policy makers
(2) Steps
(a) 1st myth-realist insight is that judges make policy instead of merely interpreting
the law-permits a judge to do too much and act as a legislature-this theory can be very
damaging
(b) 2nd-judges are filling up statutes with their own ideology
i) why are they free to follow their own ideology?-statutes need interpretation-no
statutes are crystal clear-statutes permit allot of room for judicial discretion
ii) what is the model?-Look at their model based on their votes in certain types of
cases-Issues such as civil rights and pro-civil liberties cases to determine whether
they are liberal or conservatives but This is not necessarily accurate-they Also look
at media accounts-Media outlets must be watched-The editorials are whatever the
authors say
(1) Possible problems:1-What about a nominee who has never been a judge-Some
judges change their mind or perspectives once on the bench (hence, justice
souter) 2-Hard to tell if it Is an originalist a republican or just have this view?
3-Just because in favor of civil rights does this mean you are liberal?
3. New Behavioral Theories
V. Statutory Implementation By The Agency
A. Introduction
1. Agency Power
a) Two types of power
(1) Substantive Power –this power comes from statute
(2) Other Secondary Power
(a) Ex: putting out policy in a guidance document-advising parties of its likely action-not
really making binding law-as a lawyer you have to see how likely it is to stick before
you advise your client on how serious to treat it
2. Formal Paradigm
a) What does it look like?
(1) Not all different from legislative process
(2) Someone introduces an idea (like a bill introduction)
(3) Parties can request actions which are within an agency’s statutory power
(a) Sometimes a private party, sometimes the white house, sometimes Congress
(4) Begins with an idea, then the agency considers a petition for rule making,
then if it decides to go ahead it issues a notice of proposed rule making
 (NPRM)
b) Notice of proposed rule making (NPRM)
(1) It is identifying options and asking for comments
(2) Not binding but an action document (kind of like legislative history but
really not)
(3) An invitation to submit comments-a mere proposal-an agencies ideas about
possible policy directions
(4) If you want the agency to consider your comments, you submit them now
when the agency ask for them
c) Agency Issues a Final Rule
(1) Legal effect of final rule is binding-it is the law-if your client does not
comply there is a penalty usually noted in the rule
(2) It is implementing a statute by bringing the broad commands down to the
ground
d) Supplemental Notice of Proposed Rule making-SNPRM
(1) sometimes they have this When the final rule diverges in significant respect
from the NPRM, so the agency will give another round of notice and
comment
(2) The NPRM is purposed to give notice and an opportunity for comment-so
sometimes an agency will go back
e) ANPRM (alternative notice or proposed rule making)
(1) We may put in another round of notice
3. Who writes these things?
a) It depends (agency experts, lawyers, very many agency
officials have a hand)
b) **Often times it is not government officials at all who are
doing the writing, sometimes sponsored by a government
official but also can be written by a private firm, lobbyist
(1) *Agencies are constantly on the ground so as they know exactly where the
regulation will come out
(a) this could be a good thing because of their expertise-they have to be knowledgeable in
order to craft regulations
(b) we value them because they can get out in the community (more likely to talk to and
hear from everyone who is interested in the matter-not just one groups such as auto
makers)
(c) the courts cannot do this because they are not their to be roving information for
expertise but are supposed to sit and wait for a dispute to be brought to them
4. Agency Process versus Congressional Process
a) An Agency is Subject to a Process
(1) What you get when the agency writes statutes
(a) Transparency
(b) Participation
 (c) Even-handedness
(d) Rationality
(e) A Check and a Balance-we ask more of these people because they are not elected
officials
(2) If you don’t like what the agency has done
(a) You can sue in a private lawsuit
(b) You can go to Congress and ask them to pass a statute to stop it (CONGRESS NEEDS
A STATUTE TO REVERSE A FINAL RULE)
i) There is an action of this sort that Congress implemented to stop the agency when
it went too extreme the section 208
(c) You can go to the executive-you can get at the President by saying this is very bad for
you-white house is available to respond-involved in rule making more than Congress
especially with executive branch agencies when
i) President cannot ask an agency to disregard a statute, but can water down
enforcement so effectively it can water down the rule
ii) PRESIDENT CAN ASK THE AGENCY TO GET A NEW RULE-START A NEW
ADMINISTRATIVE PROCESS
iii) Can also fire the head and get a new head to restart the process to get a new rule
b) Congressional Process
(1) Congress listens to the one’s with the money-public choice
(a) So even handedness is out of the window
(2) Maybe not rationality because we need lots of political scientist to tell us
why congress gives these broad delegation
(3) We don’t impose the same process on these people because they are
elected-if we don’t like what they do, we can vote them out
(4) Need a heightened standard to say statute is crazy-nearly all purely rational
basis arguments will not work alone
B. Understanding Regulations: The Story of Standard 208
1. Overview
a) Standard 208 imposed a passive restraint mechanism
because people were not using seat belts-idea was to have
these to automatically protect people-at the time, the two
options were: 1-automatic seatbelts and 2-airbags
(1) Why did the agency need to propose a change or the rule? or Why wasn’t it
working?
(a) Changed circumstances
i) Agency said to Just go with the seat belts (would have given automakers the
choice-they chose automatic seatbelts because they was not so invasive and less
expensive than air bags-concerned about cost- and the did not put the cost on
people because they would not have liked this.-
ii) Reasons for Revisiting its Proposals: Auto makers responded in a way that
frustrated NTSA’s assumption-There were also numerous delays (foot dragging on
auto manufacturers-manufacturers were having difficulty selling cars-people
wanted smaller cars due to issues with oil-NTSA though big cars first but not as
many people have big cars)
2. Transition: how agency moves from the 1966 act to the
current regulation
a) 3 ideas/proposals
(1) 1-small cars 1st
(a) most people drive smaller cars-smaller cars get passive restraints first because most
likely to have grave injury
(2) 2-simultaneous compliance
(a) small cars and large cars get in the same schedule
(b) equalized cost among auto manufacturers
(c) all cars would be brought into compliance at the same time
(3) 3-recision
(a) take back passive restraints
(b) benefits of passive restraints simply were maintaining and they were issuing large costs
b) 4 sorts of analyses that agencies (as well as the agency
here) typically engage in-will take you through all the
relevant moves:
(1) statutory analysis
(2) scientific analysis
(3) economic analysis
(4) policy or political analysis (a catchall or other category)
c) Application
(1) Statutory Analysis
(a) Usually the first step in the analysis
(b) tells what the words of the statute mean
i) example: like in Sweet Home (difference of the meaning of take and harm-to see if
it includes habitat modification and degradation)
(c) agency will tell you about its job
i) its scope and its mission
(d) Here, the agency says
i) focus of what is “practical”
(1) if benefits won’t materialize or the public won’t avail itself of the benefit, then
not practicable
ii) focus on what is “reasonable”
(1) costs have to be reasonable in terms of the benefits (and this is not an abstract
term)
(a) if the benefits are terribly low, then the costs start to look unreasonable
iii) focus on how an agency must be meeting the need of auto safety
(1) sites the senate report and a court case
iv) tells something more generally about its power
(1) agency says it has a pretty broad delegation to set forth auto standards and
watch them to make sure they are working well in theory and in practice
(2) tells about its duty and saying that it must have a reason to make sure its
regulations are working in lieu of changed circumstances
(3) they must watch and improve if necessary
(a) here passive restraints were a good idea in theory but not in practice
(2) Scientific Analysis
(a) scientific analysis is generally next when statutes are about health and safety
i) science can tell agencies whether there is a risk and if so what is that risk
(1) the risk here is people flying through their windshields-in other words
secondary collisions
(2) the data here is from the Rabbit-Chevette study
(a) this study was commissioned to see whether people used their belts or not
(b) 81% of viewing incidents reveal they use automatic seatbelt in Rabbitts
 (c) 72% of phone interviewers said they use their automatic seatbelts
(d) 1-could be a problem with self study or self reporting 2-the missing links
here, had to go through a lot of effort to detach their belts (cut them, sit on
them, disable them from hood 3-but nevertheless these percentages were
still pretty good and definitely better than manual belts 4-nevertheless this
study seems to provide more useful information
ii) Response
(1) these particular ignition interlock and continuous spool belts concerned people
about emergency exists
(2) Congress therefore prevented the ignition interlock, so now you are left with
the detachable automatic seatbelt
(a) this was better in terms of consumer fears but people were still creeped out
about these
(3) were people right to fear these?
(a) if you had no knowledge, the perhaps you could be fearful but for the most
part, the data shows that people’s fears were not rational
(4) why would the agency follow this irrational fear?
(a) the fears were overstated-and the seat belts evidence was actually showing
they did far more good than harm
(b) the agency says that it has to deal with public attitudes regardless as if
they are rational or irrational.
(c) people will resist this regulation and future regulation –so the agency does
not want to shoot itself in the foot.
(d) NTSHA was ahead of its time in recognizing this
iii) Was NTSHA right to do this?
(1) can be the product of short term thinking—were they agencies overweighting
this fear
(2) some say that in the short term, people would be upset but in the long run, the
benefit would far outweigh these costs
(3) the agency nevertheless said it could not move forward with the belts
(a) therefore, it had to discredit the study
(b) distinguished because those were non-detachable belts
(c) also, those cars are smaller cars
(d) smaller car users will wear there seat belts more because they are more
likely to be injured while on the road with larger cars
(e) also, the rabbit-chevette drivers are a smaller population that chose the seat
belts-they were more attune to the larger caution –they were ahead of the
general population
iv) How do we estimate public uses?
(1) population and devices were too different
(3) Economic Analysis
(a) How did this agency choose to proceed in the face of uncertainty?
i) you can’t make that judgment in the abstract, but you must look at the facts
(1) here looking at the economic facts-cost benefit analysis
(a) if costs are very high and benefits are very low, then no
(b) here it says that there could be a billion dollar increase with no certain or
very small usage (the agency could not make a guess or estimate about
usage-but somewhere on the low end)
(2) this economic consideration is a tipping point
(b) what happens to these costs?
i) push over to consumers to bear the cost
(1) consumers would probably not recoup the costs
(a) car prices go up so consumers would buy less cars (can’t afford the new
car)
(b) so manufacturers would sell less cars
(c) so manufacturers would have to let people go—negative impact on
employment
 (2) insurance premiums are not exactly sure they can give people breaks for
passive restraints b/c no proof that these would work to reduce incident
(3) fuel costs would increase
(4) Political Analysis
(a) Political-largely framed in terms of economic costs
i) big issue: what does the President want?
(1) Ragan wanted to relieve the manufacturers of the huge burdens and
deregulation
(2) this is missing from the agency’s rationale or perhaps it was implicit in the
agency giving huge deference to the manufacturer’s ideals about public
attitudes
(b) the agency is really concerned about costs
i) maybe the agency should have been more candid about saying that costs have to be
upfront in the midst of the public stigma
(c) really about politics and maybe the agency should have come clean about this
i) it matters what an agency says and sometimes it matters what an agency does not
say
C. The Standard Form of Regulation
1. NPRM
a) In general
(1) Pretty easy to outline-easier than final rule-predictable format like statute
b) Outline
(1) 1st-Citation
(a) tells where information is published and what it is in reference to
(2) 2nd-Agency Caption
(3) 3rd-Action Caption
(a) **pay close attention to the action line to make sure you have the right reg-not the
notice or something else
(4) 4th-Summary
i) the summary in a notice or rule is even better to start off with than headnotes at the
beginning of the judicial decision because an agency actually writes it-read the
agency’s summary first 100% of the time b/c it tells you what you know
(5) 5th-Date
(6) 6th-Address
(a) important if you want to submit comments on any regulation-agency is obligated to
consider the comments-Standard 208 and decision to involve seat belts/air bags had
more comments than anything else because people fell passionate about and confident
in this-can flood the system with comments-as long as agency makes a good faith
effort to combine, then it is okay-courts will no micromanage
(7) Administrative Section
(a) Supplemental Info-rule is the bottom line-things that will result and have binding legal
effect-
i) Sections
(1) Background
(2) Principal Proposal
(3) Additional Procedure policies
(4) Impact analysis
ii) Synopsis of Supplemental Info
(1) Most similar to senate report but different because
(2) The supplementary information section is quite different from the legislative
history
 (3) Supplementary Information is part and parcel of the rule in a way that
legislative history is not (it is background)
(4) SI gives the basis for the proposal and decisions-courts can’t ignore it
(5) It is part of the rule in a way that legislative history and judicial decisions are
not
(6) The holding is law but it dicta is not-it depends on the court that comes behind
it
D. The Tools of Statutory Implementation
1. In General
a) Big Point
(1) Passive Restraints did not come to rest with the 1977 Rule
(2) the agency left out talking more about implementing air bags
(a) why? Costs prohibitive
b) Impact analyses
(1) when agencies make analysis, they are require to engage in separate and
simultaneous analysis
(a) executive branch is required:
i) one is: cost benefit analysis
(1) requires agencies to submit there proposed rules to OHIRA and that office
performs its own layer of costs benefit analysis in connection with the agencies
cost benefit analysis
(b) statutes require
i) ask agencies to specifically consider the impact on small businesses.
(2) the idea is that the whole act will prod the agency in the right way (going
through the motions will cause the agency to reconsider)
(3) If agencies have inadequately considered the impacts or failed to consider
that is a strong tool in your toolbox.
c) Agencies statutory interpretation
(1) MQ: do agencies interpret statutes differently than the courts?
(a) are they like judges/courts acting as textualist, purposivits…
(2) 2nd Q: How should courts deal with agency interpretation?
(a) this is important because often agencies get here first
(b) will really look at this when we get to judicial review of agency
2. Statutory Analysis
a) The Framework of Statutory Analysis
(1) Chevron USA., Inc v. NRDC
(a) Background
i) important for how courts will review agencies interpretations or decisions
(1) so agencies when interpreting statutes in the first place will have a big impact
on how this will go later on down the road
(a) will have to think about this initially if they want their interpretations to
stick later
ii) really a case for courts (tell reviewing courts how they are to regard interpretations
that come initially from agencies)
iii) as a practical matter, agencies are the primary interpreters of agency statutes (so we
are very interested in how agencies tackles this on their own)
(b) Facts
i) The dispute is over what the Statutory phrase in CAA means
ii) Non-attainment areas (dirtiest areas of the country)
 (1) before it can increase the level of pollution it must get a permit from the EPA
to do so to make sure it is okay.
(2) this is really burdensome but it would be especially burdensome if the factory
had to do this for every single smoke stack
iii) this was the initial meaning but it was changed to the bubble theory
(1) the effect was that Factory owners could modify individual smoke stack
outputs as long as it did not modify the overall pollution output
(2) this was good for the factories—this is also good for the EPA because it is
much easier to administer
(3) administrative convenience can’t be the sole reason though
(a) here it serves administrative interest by reducing the overall amount of
permits but pollution does not increase because the factory still has to get
permits to increase overall pollution emissions
(b) this is problematic because they are not charged with simply maintaining
pollution levels (hence the clean air act) but they are supposed to reduce
emissions in these areas which are the worst of the worst
(4) On the other hand, the bubble system may make factories more likely to come
up with other innovative techniques since they don’t have to constantly be
applying for these permits (this is an alternative regulatory approach—gives
factories incentives to do better by relieving them of some of the obligations of
applying for permits)
(c) MQ
i) Does “stationary source” apply to all sources within one area (bubble) or does
statutory source mean each individual smoke stack?
ii) does it mean individual or bubble?
(d) Issue
i) Whether a stationary source is should be interpreted as in a bubble or individual
smoke stack?
(e) Rule
i) Chevron Two Step Test
(1) STEP 1: Has Congress specifically spoke to the precise issue?
(a) important b/c the statute is what controls and the agency only has the
power given to it by Congress.
(2) STEP 2: Is the agency’s interpretation reasonable?
(a) important b/c courts will defer to agency interpretation as long as it is
reasonable
(f) Analysis
i) How quickly will the court move to step two?
(1) Chevron says one thing and does another.-Here the court actually does
something different-The court shows that courts do whatever it is they did
before an agency was involved. (this means using dictionaries, legislative
history)-they use all traditional tools almost as if the agencies were not there to
see if Congress spoke on the issue
ii) In theory courts should leave the agencies to update the statutes in lieu of changed
circumstances
(1) this is consistent with political scientist do-however this is not what courts
always do
iii) What does the court in Chevron say it will do?
(1) the court says it should stay away from very technical tools and updating (just
seems like it does not do this)
(g) Thoughts
i) For every concrete rule we put forward in Chevron, there is a counter
rule---Chevron is a very live doctrine (it will probably change soon)
(1) What does step one say to agencies? What tools will you use?
ii) agency always has incentive to say that the statute is vague
(1) they want that flexibility but in terms of interpretation-they would use the same
kinds of tools as lawyers would use
 (2) agencies should assume they will win if statute is ambiguous because
reasonableness seems to set a fairly low level of scrutiny
(a) this is where the argument of Congressional delegation comes
in-sometimes agencies are better at interpreting statutes because of
1-agency expertise 2- political accountability (even though agencies are
not run by elected officials-like EPA, HHS, and etc-all executive branch
agencies, the President can replace the head of these agencies)-agencies
can be reached if reaching a political decision that is not liked where as the
courts are immune since have life tenure and 3-Congressional delegation
(congress wants the agency to make the choice-hence that is the reason
they created the agency in the first place)-agency has overarching explicit
authority or implicit since ambiguously written
(3) once we recognize that ambiguous statutes call for policy judgments-at this
point who should decide?-in Chevron the courts say that agencies should
decide for the reasons above
iii) agency could also have an incentive to say that the statute is clear and is clear in
support of their position
(1) 1st problem: this could be problematic because no way to change UNLESS
you say the court got it wrong last time (easy to do using the statutory tools
because for every tool there is another tool to convey the opposite idea)
(2) 2nd problem: agencies could have advanced knowledge that could get it in
trouble---if trying to mirror the court, then maybe it won’t get it right
(h) Tension
i) courts don’t always want to give over authority, they will seize control for the most
part at step one-but even if the agency can show through step 2, it is not home
free-So the agency should not rest on its morals, but is should produce evidence
that is really imminently correct-so the previous is the reality despite what Chevron
says
(i) Take Away:
i) Agency must work pretty hard to pair it with court and pick the same
interpretation that the court would, the agency must still produce evidence to
show that its interpretation is not merely reasonable but correct.=this is
different from what Chevron suggest on its face
(2) Mashaw-how agencies conduct statutory interpretation (pg. 454)
(a) sometimes agencies do engage in an empirical argument, so they respond directly
to the courts analysis in Chevron-sometimes agencies cite Chevron and breaks down
in terms of arguing both two steps architecture
i) in reality, the EPA is really one of the only agencies that does this-agencies that
cite chevron (1st –Chevron is an environmental case 2nd-more organized interest:
when lawyers involved and lots of strong organized arguments, agencies have the
interest in organizing its answers to address the opponents arguments in advance
(EPA and perhaps NTSHA falls into this category)-3rd-some agencies are just more
apt to being a thinking persons agency due to their technical or arcane
jurisdiction-some agencies just explain more or provide more to the people and 4th
other-deals with the format of the rule-agencies make policies in lots of different
forms-more like a court than a legislature-generally applicable and forward
looking-can do this in opinion letters/guidance documents (level of rigor seems
to be lower-this is not as well considered-why? Not a lot of scrutiny behind it, not
issuing policy or law for all but rather advice to a requesting party-“quick and dirty
advice”-agency is not sticking out its neck-interpretation is likely to be less
considered-often an agency will disclaim reliance but if they do try to rely on it
then you go after them for your client)-level of formality varies with the form in
which the agency-agencies do much more than issue notice and comment rule
making)
(b) If not citing Chevron, then how do agency conduct statutory interpretation in most
notice and comment
i) if an agency addresses a statute it address mostly questions-affected parties issue
 questions of interpretation, then agencies respond largely to party comments
ii) agencies sometimes parrot courts
(1) similarities of agencies and courts
(a) (sometimes textualism is used including plain meaning-they use legislative
history about as often as courts but often with a different sort of attitude
(they are not apologetic about using legislative history) but here the
agencies are not subject to subjectively and manipulativity (agencies are
not looking out into the crowd and picking out their friends)-they are more
on the ground, they know which statements are the real deal-they can see
the crowd in its real deal
(b) problem: courts are nervous about legislative history even when they
should not be---agencies thus must pretend they don’t know so much in
order to mimic courts-if courts maintain their resistance to the legislative
history, then knowing the legislative history will not help the agency-but
only put more distance in between the agency and legislative
history-agencies need legislative history (they are being asked to surrender
a really important right)-agencies need the legislative history to get at the
best overall regulatory scheme
(c) agencies has an ongoing everyday duty to make the statutes work
better for all people everyday=they have a larger overall or
overarching mission than just interpreting statutes-so these issues
matter more to agencies than to courts
(d) agencies are not slavish, they view their mission as making statutes work
in light of factual and political circumstances (most like dynamic
interpretation)
(e) agencies are diverse, but sometimes the agencies are multi-member bodies
that are not speaking out a certain voice like with the SEC (this is like the
courts who all have different views)
(3) Normative Evaluations (pg. 458)
(a) Main Question: Are agencies interpreting statutes well if Mashaw interprets the process
right?
(b) Response: agencies don’t always engage in the same way as courts
i) Agencies do not always trim their interpretations to avoid constitutional
issues-AGENCIES DO NOT USE THE CANNON OF CONSTITUTIONAL
AVOIDANCE
(1) WHY NOT?-They say it is not their job to self restrict, they’re job is not of
constitutional experts (like courts) but statutory experts (they are suppose to
interpret statutes in a way that best serves the statute’s meaning)-courts owe
Congress a duty of respect-agencies and Congress have a completely different
relationship (agencies should press the envelop and if Congress does not like it
then it will change the statute)
(2) It suggest as a normative matter, agencies should do it different since they
have a different job and different relationship to Congress and as a
practical matter they do due it differently
(a) justice scalia would say it does not matter who is doing the interpreting,
must make legislative history go out because that is not what the Congress
enacted—it is unconstitutional no matter who uses them
ii) Mashaw leaves us with a concern about too heavy use of legislative history:
1-legislative history may be problematic (a fiction) not contemporary but rooted in
the past-using legislative history as a mask 2-legislative history is rooted in past
and agencies are not supposed to be held by from interpreting statutes dynamically;
this is important in terms of changed circumstances
b) The Tools of Statutory Analysis
(1) types of analysis that agencies must engage in
(a) statutory analysis
(b) scientific analysis
 (c) economic analysis
(d) political/policy analysis
3. Scientific Analysis
a) Risk
(1) In General
(a) science can be useful in estimating risk and agencies are in the business of estimating
and confronting risk
(b) our forte has been risks to health and human safety, but we have also addressed
environment and animals
(2) Steps: Science is useful in two ways
(a) 1-risk assessment step
i) This step addresses how likely is it or what is the probability that an adverse
outcome or bad event would occur?
ii) science matters a lot here because scientist are trying to assign a probability to a
particular risk-sometimes they can’t though because risk is too new or the
methodology does not exist (can have declaration of uncertainty that comes out
here)
(b) 2-risk management
i) at this phase scientist are making decisions about how to proceed about the risk we
have identified
ii) judgment required in order to go from rat population to human population
phase-there is judgment here at this phase-talked a lot about judgment at this phase
b) Scientific and Trans-Scientific Questions (pg. 469)
(1) In General
(a) sometimes scientist need policy people at the table to know what to do with the risk
assessment and the risk management
(b) in assessing the risk we have assessed that there are some scientific and tran-scientific
issues
(c) if leaps are small then maybe not necessary to have a policy person at the table but
perhaps sometimes necessary to break down the policies or have a policy maker at the
table in the risk management step (might want to include others at the table-perhaps
those who are politically accountable)
(d) when moving from risk assessment to risk management, you want someone else there
(2) Real example:
(a) 1 in 2000 or 1 in 6000 or 1 in 4000 on the way down
(b) may want to have someone else involved to determine how much a life is worth-need
someone to find the value in the incremental benefits
(c) something else besides science has to make the judgment
c) Scientific Uncertainty (pg. 476)
(1) Uncertainty
(a) Impact: uncertainty plays a really large role in the regulatory state-lets think about it as
different than risk itself
(b) Types: 1st type of uncertainty-when we have not yet measured an event (something
really new happening-ex: potential effect of cell phones on the brain) 2nd-we can
measure uncertainty but not sure it posses a risk (ex: extremely high temperatures
in 98-is this bad-does this signal bad things from climate change or is it just an event)
and 3rd-we know there is a risk but we are having trouble measuring it (ex:
climate change: uncertain how great it will be or how often it will occur)
(c) There is uncertainty at every level b/c science can’t say for sure, so no 100% reliable
information for risk.-uncertainty itself is a scientific term-uncertainty is a political view
(d) Responses to Scientific Uncertainty:A couple of different responses to uncertainty;
With toxins in you water and food, there will be some residual uncertainty because at
best you have probabilities-for the latter uncertainty, we ought to adopt the
 precautionary procedure –this is conservatism: conservatism is not the same as used
traditionally because it actually here means more government (pg. 477) rather
conservatism says in the face of a high degree of certainty or probability, lets go ahead
and regulate (this is a precautionary principal); con to conservatism is too much
regulation for things we do not know are sure-some would say if you can’t model it,
then don’t do anything now (reason 1-may be able to model it in the future 2-may
come up with a solution in the future that can model it as it stands now 3-cost are
enormous)
(2) Ignorance
(a) things come at us unexpectedly-things just happen and we are ignorant of their
existence before they occurred (ex: earthquakes)
(3) Main Questions
(a) probability-how frequently will this risk occur?
(b) magnitude-how important is this risk?
d) Other Technical Analysis
(1) Science Charades
(a) 3 types of science charades
i) unintentional
ii) intentional
iii) premeditated
(b) Unintentional charade (pg. 473)
i) “Once given responsibility for setting a single, quantitative standard, agency
scientists generally take one of two approaches: 1- they continue indefinitely to
look to science to resolve the trans-scientific questions; or 2-they substitute
their own values for the policy choices needed at the trans-scientific junctures
and characterize the final science-policy decisions as the result of
scientific-experimentation and scientific judgment”
ii) science can show the exposure curve-but scientist can’t always see when science
becomes trans-scientific (someone else ought to be involved in making choice)
iii) In those embedded, sometimes scientist are not aware when they have crossed the
line (not a moral thing) but just that other people ought to have considered the
impact
iv) MQ: does it look like the agency embarked in rational and reasonable things-was
policy embedded in science
(c) Intentional charade (pg. 474)
i) “WIth intentional charade agency bureaucrats consciously disguise policy
choices as science”
ii) scientist are aware that they ought to involve policymakers and that science have
run out, but they keep going instead of realizing they need policy to cover it up
(1) Ex: ozone (must disguise as science in order to make judgment stick-but if
using policy, then it would open up the door to other alternatives or opinions)
iii) Sometimes a incentive to disguise policy judgments as science-trying to guide their
policy from attack
(d) Premeditated charade (pg. 475)
i) “introduce science only after the fact in order to scientifically justify the
predetermined standard”
ii) policy first, science second-immunize from attack on policy grounds
iii) most often premeditated charades are perpetrated by political appointees
(2) Cognitive Biases
(a) In General
i) when making decisions, people make departures from reality-people do a really
bad job of managing risks because of their discounting probabilities-personal
accounts or instances from the past will make people over value or under value
risks
ii) we need a way to pick among options, we do this through an economic
 model----ask people what they would be willing to pay in order to eliminate a risk
iii) should we accommodate people’s biases or should we fix them?
(1) Example: how can you fix a misperception problems about car accidents?
(a) 1-provide information, 2-regulate (local government can force you to
act-seatbelt laws) 3-do nothing (NTSHA did nothing-can’t afford to do this
all the time)
(2) problem: agencies want to make regulations work-perhaps the agency has
cognitive biases itself
e) Example: Yucca Mountain
(1) Overview
(a) disposal of radioactive waste;a lot of truckers are carrying this; we generate it and it
lives forever-it can kill you forever, depending on how you are exposed to it-very
difficult to figure out what to do with it
(b) Issue
i) unresolved controversy about where to put the radioative waste (some thought that
Yucca Mtn would be the place)
(c) Analysis
i) scientific determination; statute told EPA to consult the national academy of
science; “Reasonably minimally exposed individual”; we think this stuff will only
remain radioactive for 10,000 years is the right number and NAS disagrees saying
at least hundreds or thousands of years so they need underground technology to
deal with this stuff-this is the major fight over who to listen to; seems ridiculous to
fight over 10,000 years versus 100,000 years-this is beyond human comprehension;
10,000-justifications for epa its reason is technical and policy considerations-try to
get; as far into the future as you can but then be flexible because things can
change-we will do enough now because things may change later-but this is a
general argument for refusing to regulate or regulating in a lax way; epa says nas
forgot to consider somethings
4. Economic Analysis (principal tool)
a) The Rise of and Case for Cost-Benefit Analysis
(1) Origin
(a) CBA holds considerable space in our regulatory scheme b/c Presidents such as Regan
have required them for executive branch agencies so some agencies are under a legal
law which mandates CBA
b) Valuing a Statistical Life
(1) Agencies have to put price to benefits
(a) statistical value of life=a dollar number that ranges across agencies and ranges in
agencies for specific issues (economics derive a value of life somewhere between
$500,000 and 15 million across agencies-the average figure is 1 million dollars per
life)-they get this number by 1-asking people how much they would be willing to pay
in order to decrease some risk and 2-look at statistical data for labor percentage (if you
will work in coal mine, how much more would you demand for an increase in risk)
(2) Examples:
(a) Every time we lower the arsenic ppm level, people have a less probability of getting an
illness-1 in 2000 will 10 1 in 6000 will get a life threatening illness if reduced to 6ppm
(3) Purpose
(a) standardize risk or metric b/c ppl have idiosyncratic preferences
(b) people also value their own lives rather than others
c) Other Cost and Benefit Assumptions
(1) Reasons for use of cost benefit analysis:
(a) Common sense: we ought to get some benefit for our buck
i) ex: should I speed to get to class?
 (2) Only want benefits that we are willing to pay for
(3) Compliance with Executive order or statutory considerations
(4) Some agencies are required by executive order to report their cba to the
white house to OIRA
(5) Executive branch agencies must do cba if the cost is more than 1 million
dollars
d) Putting it Together
e) Criticisms of Cost-Benefit Analysis
(1) Weak spots
(a) Income-if wealthy more able to expend more to reduce risk
(b) How do you measure justice
(c) how to do we determine how much a benefit is worth to us in dollars so we can
measure against the cost?
(d) must make sure the benefits are roughly comparable
(e) one of the big criticisms of CBA is that there is an overemphasis on costs and an under
emphasis on benefits
i) cost benefit analysis is inherently regressive
(1) goes back to regan’s platform of deregulation-thought we had too much
regulation
(a) CBA would take down the sheer volume of regulation-many of the
economist regan hired are still there-so they systematically look at numbers
in a way to move regulation in an anti-regulatory way or deregulatory
fashion
f) Statutory Variations in Economic Analysis
(1) Hard Issues
(a) difficult to monetize environmental harms or environmental issues
i) not as easy to track reductions as opposed to risk of life or a limb or health
(1) vary wildly-much divergence of opinion
(a) Ex: forrest and clean water
(b) vary when thinking about risk to future lives
i) only easy to value things that pertain to us
(c) STATISTICAL MEASURES CAN VARY FROM ACTUAL MEASURES
i) Statistical measure: 10 billion benefit-cost is $1 million for every 10,000 lives
saved-on its face this seems to pass the CBA-BUT the agency offered a different
value
ii) NTSHA put zero benefit on passive restraints b/c it thought ppl would not use them
iii) The SC came back and said no we think the benefit is closer to the statistical
measure-want to make sure the agency takes into account all benefits and all
costs-perhaps if you get in a car accident, without passive restraints so you get
hurt-costs can get spread to the public at large-can drive up medical costs-can drive
up insurance premiums
(2) *Sunstein’s List for Range of statutory variations**
(a) 1-NO COSTS=DON’T CONSIDER COSTS
i) Must be a issue of such high consideration that Congress would say you should
ban cost-not seen very often
(1) Examples of statutes with language that is read to prohibit consider of costs
(a) 1-statute directing the EPA to clean to air to protect the public health with
an adequate margin of safety (Clean Air Act)
(b) 2-any substance that reduces cancer in man or animal (gurini clause-food
additive(broad) now color additives (narrow and pretty useless)
(b) 2-BENEFITS THRESHOLD
i) MUST DEMONSTRATE SIGNIFICANT RISK FIRST BEFORE DOING
 ANYING
(1) Ex: OSHA Act (workplace toxins or workplace harms)-must show a significant
risk of harm before it regulates-requires agency to do something benefits
related first
(c) 3-OTHER RISK
i) Tends to be clearer than the first two in that is directs agencies to show prior risk
first
(d) 4-“FEASIBLE” OR “ACHIEVABLE” COSTS TO INDUSTRY
i) only if the cost to the regulated industry is reasonable
(e) 5-LAUNDRY LIST-COSTS
i) costs is listed as but one factor-cost is only one of the many considerations (would
literally be a list)
(f) 6-COSTS BENEFIT ANALYSIS-“UNREASONABLE RISK”
i) risk is unreasonable if it can be provided at a reasonable cost
(1) Ex: NTSHA fits in here (somewhere b/w 4 and 6)-“practicable” is key word
and “unreasonable risk of harm”-SC says safety trumps
5. Political Analysis: An Auto Safety Case Study
a) In General
(1) Really a catchall category
b) Public Attitudes:
(1) NTSHA’s broadest consideration of public attitudes are usage-thought
people would not use seatbelts; sometimes agencies must consider public
attitudes when addressing its statutory mission-Agencies are right in the
middle in terms of determining when to lead the public or when to give up
their priorities and let Congress to the leading. (ex: in healthcare it was
Congress doing the leading and in NTSHA it was the agency implementing
the unpopular program)-from a democratic perspective, it might be more
appropriate for Congress to lead b/c if we don’t like what they do or if it
goes too far then we can vote them out but on the other hand, the agency
has leadership and should lead on expertise grounds-Agencies leadership is
only a continuation of the legislative interest (this is just prioritizing)
c) Issue of Cognitive Biases:
(1) although we assume people do things in their best interest (rational actor
theory)-but there are pockets of decision making that the agencies have to
take on b/c of people’s irrational fears (Ex: NTSHA continuous spool
belts-people feared being trapped by non-detachable belts-this is a cognitive
bias)-government may correct the cognitive bias by thinking for you or
acting on your behalf (paternalism) if it believes this is the best way to
cut at the problem-NTSHA was worried about people having to pay for or
take on costs of other people’s preferences/issues-distributional affects
(agencies often do consider distributional considerations)-rather than using
the fact of legislation or the fact of regulation, there are things that agencies
can do to move the people alone
d) Political Preferences:
(1) the President has an ongoing reason of making agencies do things it wants
 them to do. Sometimes you see explicitly that the agencies consider exactly
what the President wants them to do. Perhaps the choice that the
administration prefers in the correct one. (If really a policy choice, we can
make accountability arguments like Chevron-if someone is going to make
the policy choice, why not let the President do this)
e) Example
(1) Greenhouse gases ex: (domestic as well as international issue-MI: whether
to regulate greenhouse gases)-Congress enacted a statute to address part of
the issue-so perhaps a congressional policy-broader efforts should go with
this small policy-when the administration is especially referenced, it is hard
to go against that-this is expressed reliance on the president as opposed to
behind the scenes reliance
f) OHIRA
(1) Increasing agencies will reference OHIRA and OHIRA costs benefit
analysis-b/c OIRA is part of the white house, we will rely on their
decisions-does OIRA stand on the same foot as the President? No, but
OHIRA operates under a statute the is supposed to identify shortcomings of
agencies-an office in the white house, but still just another
agency-executive branch agency (but here to regulate CBA)-EPA and OIRA
are more on equal footing-but if agency relies on OIRA, then political
arguments are less strong or present-but courts is particular bothered
with setting aside expressed OIRA decision
g) Final political: A BREIF SUMMARY
(1) Sometimes a court will look out and see new statutes, later enacted statutes
shed light on the earlier ones-agencies also rely on this stuff, use them just
the way courts do-they suggest that later Congress or present congress
would support the policy we pick
E. Positive Descriptions of Agency Behavior
1. Guidance Documents
a) In General
(1) Some don’t read the policy statement as non-binding law but some regard
as no different than notice and comments
b) FCC Example
(1) FCC has determined it can prohibit all obscene speech (ex: blatant
pornography) but not indecent speech (7 dirty words or what we call curse
words)-Indecent speech is tailored to test 1-permission for agency to
regulate indecency in terms of time, place, and manner if they have a
heightened interest (like protecting children)-Broadcasters can air
indecency between 10pm and 6am (times during which children are
probably sleep)-Harder to air indecency during prime time hours-Policy
 statement tells what is classified as indecency: 1st-must have sexual or
excretory organs or activities (south park challenged this with the sex in his
vagina); 2nd-must be patently offensive according to community standards
for broadcast medium*full context of the broadcast is important-
(difference between news and entertainment)-in south park the attack was
on the news being able to say things versus it being controversial on a
show-cant use in a gratuitous or fleeting expletive manner-amplifier (or
descriptive)-when used as an amplifier or descriptor is used as an expresser
(this is okay but hard issue for FCC-just shows excitement but bad if kids
are in the room)-times-one time is okay (for shock value) but repetition is
bad-hence, in South Park episodes, the broadcasters got out of
control-strategies to increase ratings is bad-don’t use words to generate
ratings-FCC is a multi-member board (so you will see the view of the whole
group and then the smaller commissions)-Like the dissenting opinions in
judicial opinions-FCC itself says that this is mere guidance, put out as
illustrations but south park shows that the line between mere guidance
and law by notice and comment rules is illucid
(a) Pros of guidance versus notice and comment
i) Avoids issues or conflicts with the 1st amendment and clashes with the SC
ii) Help without all the confusion
(b) Cons of guidance versus notice and comment
i) Few broadcasters are really confused about the line, more enforcement is what is
missing (dissent: says this is mask working, diverting time and money from the
real issues)
ii) Provided broadcasters with a playbook, so they can drive right to the line and then
stop
iii) Agencies are acting without the real notice, explanation and deliberation given by
notice and comment-Can say that it is procedurally defective (that the agency is
really supposed to issue notice and comment regulation)
c) Cons
(1) With guidance, they lose notice-participation-and deliberation

VI. Control of Agency Decisionmaking

A. Presidential Control
1. Agency Personnel
a) Control over agency officials
(1) Agency can’t implement its purposes as good as possible if heads are not in
place
(2) President can fire the heads of executive branch agencies at will for any
reason at all (even policy reasons)
(3) President can fire heads of independent branch agencies for malfeasance
(a) Example: Look for thing coming about an agency such as SEC being able to remove
heads (Peekaboo)
2. Appropriations
a) Control over appropriations
 (1) In General
(a) Very effective method of control b/c without money the agency may not be able to run
their programs at all
(b) Sometimes just the threat (or showing presidential discomfort) of removal or
withholding funds is good enough
(2) Costs
(a) If president can merely threaten, this is a low costs tool
(b) President does not have to occur the costs of transparency
(c) More costly if the President actually has to go through with its threats (have to solicit
someone else for the position and to get the Senate to control)
3. Regulatory Planning and Review
a) Overview
(1) Likely to stay around for a while or for ever to shape review
(2) Regan made this systematic and is the Most significant development since
the new deal itself
b) Structure
(1) Two significant procedures (pg. 639)
(a) APA-this is a statute
(b) Executive order for planning and review
i) Comes from the President alone
ii) Binding on executive branch (including all agencies with some caveat---some the
President cannot apply review to independent agencies but no court has ever ruled
in this way)-President Clinton did apply the planning to independent agencies
iii) EO’s do not give rise to legal suit and apply only to the effect applied by law (can’t
override an organic statute)-compiled under federal regulations-can be revoked or
amended at any time by new President’s
(1) but still the law of the executive branch so Agencies will comply with them
(2) Two mechanisms
(a) Review
i) In General (OIRA REVIEW IS PRINCIPAL MECHANISM OF PRESIDENTIAL
CONTROL)
(1) Only applies to Executive Branch Agencies
(2) CBA Serves two functions: information and control
(3) Guided by Cost Benefit Analysis
(a) EB must identify significant ($1 million) agency regulations and must
submit the text of these proposed regulations with an extensive CBA
(b) Even if agency is operating under a cost prohibitive statute, then still
required to perform and submit a CBA to OIRA-even though illegal to
follow it-However you can argue that even though the executive is
requiring the CBA once you look at it then you can’t separate this from
your decision making so innately still illegal
(c) Political: Agencies have an incentive to listen to OIRA b/c they don’t want
the President to start to issue those threats
(d) If OIRA issues an agency to make changes it must do so through a return
letter
(4) Impact of OIRA
(a) OIRA is made up mostly of agency career staffers, most have been in their
positions since placed there by the Reagan Administration; this is
important b/c we cannot be sure we are getting accountability (b/c they
might have their own agendas that do not align with president or executive
in general); Lawyers could use this to make legal justifications later on
down the line that agency regulations should not control b/c the CBA is not
quite right but came from a partial review; CZARS=people appointed by
 the President who are below the president but are responsible for particular
policies because their policy expertise or benefits align with the President
(cons: usually not politically elected or confirmed by senate)-usually
caused advisors
ii) Benefits of review mechanism
(1) allows the executive to get to the agency early-always good to get clients in as
early as possible when they are likely to be most effective
(2) The OIRA review process becomes embedded in the notice and comment
review process so Systematic in a way that other tools are not-attaches to
every situation above a certain economic level-benefits are huge in normative
and positive effects
iii) Costs
(1) A whole layer of bureaucracy in addition to the bureaucracy we already have
(huge administrative and resource costs) but once part of the government,
low surveillance costs
iv) Effect of Review Function
(1) If Review function works, President gets to be hands on and this is good b/c:
(a) 1-Constitutional: Unitary executive thesis=the Constitution obligates the
President to ensure that all law execution is in his hands; Gives president a
super strong reason to exercise control
(b) 2-Obligation=President must exert control
(c) 3-Authorization=pragmatic form; President can exert control
(2) The president ought to ensure that issues of political salience comport with his
notions of justice b/c:
(a) Normative Benefit: When the president exercises control, it enhances the
efficiency
(b) Positive Benefit: Looks at president and says where is the president’s self
interest; Agency regulations roughly track presidential preferences-He
needs this in order to stay in office or keep party in office, So he can tell
the people that they are getting what they want b/c the agencies are doing
what President says to do and voters are telling President what to do
v) 3 Factors to Keep in Mind
(1) 1-Does OIRA review or compliance with the CBA cause the agency to violate
its statute?
(a) If so, watch out
(2) 2-Does OIRA review and particularly CBA force the agency to disregard other
relevant factors?
(a) Ex: If science suggest X, but CBA says Y, then the agency should be very
clear of how it makes its choice, must not ignore either science or
expertise-agency must do its job rationally
(3) 3-Does OIRA review and particularly CBA cause agencies to exaserbate the
already existing problem of overestimating costs and underestimating benefits?
(b) Planning function (pg. 639)
i) In General
(1) Applies to all agencies including independent branch agencies
(2) Made up of priorities and policies
(3) Agencies have to prepare an agenda by a date set by OIRA (agency within an
agency-the OMB) and their Individual agendas gets published in a unified
document in the federal registry
(4) agency must Prepare a regulatory plan for Significant regulatory actions
(actions costing $1 million or more) planned for the fiscal year
(a) The laundry list must be produced and No rulemaking can commence
unless in the regulatory plan-not literally bound, but must think ahead of
time b/c changes must be ran by OIRA
(b) OIRA must respond to the plans-OIRA communicate and OMB can consult
with heads of agencies or among agencies-This is a coordination
function, make agencies work together better b/c in the past Agencies
 were perhaps not getting along as a result of agency jurisdictions often
overlapping each other agencies were getting into turf battles Ex:
NTSHA and EPA (both had control over taillights)
ii) Benefits of planning mechanism
(1) normative results are better b/c agencies are more aware of what is going on
in the broad scheme of the agency world
(2) Enables the executive to step in and tell an agency it is doing too much or the
wrong things or more than the government can handle
(3) Not as often in press as opposed to firing an agency head
iii) Costs of planning mechanism
(1) Managerial and administrative high costs to get planning mechanism in
place; However, once in place, the benefits can be extremely high
4. Return and Prompt Letters
a) In General
(1) OIRA issues: Informal contacts and Letters
b) Prompt letter
(1) In General
(a) A prompt letter recommends that an agency take a specified action that perhaps the
agency is not contemplating or the action Might be in an agency’s plan but lower down
on its lists of priorities
(b) Tells an agency to do this but not that and usually these letters are fairly specific
(2) Benefits
(a) Not only serve accountability and efficiency but also produce efficacy (spur an agency
into action-literally light fire underneath the agency-this is good b/c we don’t want
sluggish government)
(3) Costs
(a) They are transparent (usually you can’t see action so there is accountability lost)-but
can enhance accountability in a more meaningful way if what they prompt the lawyer
to do is beneficial
c) Return Letters
(1) In General
(a) OIRA sends back the letters as a request for more or better CBA
(b) Usually a fairly extensive return letter, so agency knows what it needs to do for certain
to comply with OIRA’s version of CBA-then OIRA have effectively shaped the agency
(2) Benefits
(a) Respond to an agency’s CBA-so thumbs up on accountability
(b) No extra efficacy bound, except to the extent that agency will do something better
(3) Example: (pg. 662)
(a) Tire Pressure Monitoring PRM returned to DOT
i) Statute directs NTSHA to do something about monitoring tire pressure (was in the
TREAD ACT)
ii) Idea was Two systems
(1) Direct System
(a) Little sensor on each tire that measures each tires air pressure; in the car
there would be an automatic light that signals tire pressures are low-there
was no question that this works best b/c it measure each tire independently
but Direct system would be more costly when viewed in a certain light but
not in overall safety-Direct system would costs $66
(2) Indirect System
(a) Relies on automatic brake system to tell if something is wrong with tires
on each side; This would not work perfectly, b/c it measures in relationship
to all tire, so if tire pressure went down on both sides or two tires on one
 side then no signal b/c technically still balanced; Yet Adding the indirect
monitoring system to cars already equipped with ABS would only costs
about $13 more
iii) CBA
(1) NTHS said that you must not look at the costs as they are; OIRA said it is good
for efficiency b/c Might get better brakes and tire pressure monitoring and
although it will be more than just direct system but you get brakes and tire
pressure machine for costs; NTSHA said it has no proof that its train of
logic would not materialize in the real world, if they do good, but if not then
they get a lesser tire pressure monitoring system; Direct systems are best for
tire pressure in general; NTSHA said that people would not really go for a
$200 package as opposed to a $13 inferior system; The 2nd circuit agreed with
NTSHA and also said the $200 option violates the statute; making a
speculation that would not materialize-the court though that the world “A”
meant every tire must be monitored so only the direct system would meet the
requirements of the statute; Agencies could also get into trouble by including
irrelevant factors (like here the indirect system causes one to consider the
overall safety but here there was a more narrow scope of focus here which is
tire pressure)
5. Other White House and Agency Involvement
6. Presidential Directives
a) In General
(1) Come from the president himself;
(2) official memoranda directed to agency heads for specific polices not
priorities
(3) they are like prompt letters but rare and extraordinary
(4) agencies would have a really hard time to disregard these b/c sent from
there boss
(5) even if an agency follows one it can get itself in trouble b/c it can still
violate the statute
b) Problems
(1) President needs to know when to get involved or when to intervene
(2) Some issues are personal
(3) Not a lot of media attention
(4) Some issues are high profile (ex: hurricane Katrina and 9/11)
(a) Hard for the president not to keep an eye on these
(5) Presidential influence cannot cause an agency to violate its statute
7. Positive Descriptions of Presidential Control
a) In General
b) Costs
(1) President wants to ensure that the Agency action lines up with his or her
own decision making at the least costs
c) Benefits
(1) Normative benefit
(a) Greater accountability for her or his self
(b) President might seek to control the efficacy of presidential decision making
 (c) Perhaps efficiency
(2) Positive benefit
(a) Public choice account
(b) President’s own self interest
B. Congressional Control (pg. 674)
1. In General
a) Informational
(1) Congress needs to know in order to intervene
(2) Congress needs a simpler way to gain access to information as the President
does
b) Effect of Tools
(1) Congressional tools are either weak and easy or strong and difficult
(2) Why does Congress have less powerful tools than the President?
(a) President has tools are less burdensome (the OIRA process) than Congress’s use of
legislation
(b) Congress’s middle ground tool is the legislative veto (not legislation because it requires
only one house of Congress and sometimes only one committee of Congress) but it is
not as weak as the threat of a phone call or private meeting
c) Other Branches
(1) What Congress lacks is exactly what the President possesses.
d) Overall Impact of Action
(1) Congressional control seems less powerful
(2) Congress has tools that are on both extremes and so Congress has tried to
expand its powers but the court has struck them down saying they are
unconstitutional
e) Motives
(1) Political scientist say to get elected and stay in there position: want to
ensure agency decision reflect powerful constituent desires
(2) Ensure agencies follow the rule of law, ensure checks and balance, want to
make sure agencies are accountable
2. Control Tools
a) Statutory Amendments
(1) Congress has the power to change the organic statute which brought the
agency into existence and gives the agency is power
(a) New Legislation: amend a statute
(2) Congress can exercise this tool simply by threatening it “the shotgun
behind the door”
(3) Knowing that congress is ready, is usually able to be read by agency to
judge if threat is credible
b) Appropriations
(1) Appropriations Legislation: every year review and either threatened to cut
budget or actually cut budget
 (2) Congress can threaten to cut the agency’s budget and Agencies need
funding to operate
(3) Agencies Only get short term funding directly from the organic statute
(4) President and Congress decide this collectively
c) Agency Officials
(1) Congress has less control over officials as compared with the President’s
authority over executive branch agencies and even independent agencies
“for cause” removal
3. Information Tools
a) In General
(1) Congress has some of the same informational tools as the president
b) Main Types
(1) Police Patrols
(a) Members of congress patrol agency or private action to see when to step in
(b) These are expensive b/c every minute spent watching is another minutes spent away
from doing something else
(c) Not particularly effective
(2) Fire Alarms
(a) In General
i) They actually design structures that get other people to do the monitoring for
Congress; therefore Congress doesn’t have to spend its time waiting and watching
ii) Far more efficient than police patrols
(b) Mechanisms
i) Citizen supervisions
(1) Confers on individuals the right to bring suit under the organic statute, now
citizens have an incentive to watch agency action so we can do something
about it
(2) Sometimes individual citizens don’t file suit but we call our Congressman to
step in and take action
ii) Administrative Procedures
(1) Notice and Comment rulemaking situates everyone in the process so we can
truly see what is happening
(2) Perhaps the agency now has a reason to reach out to individuals
(3) People are getting more information earlier
(c) Problems
i) This seems too easy
ii) Interest groups are already watching
iii) What is the connection b/w Congress knowing and Congress actually controlling
agency actions?-Congress could possibly not do anything with this information
4. Informal Tools
a) Phone Calls
b) Meetings
c) Messages
5. Formal Tools
a) Oversight Hearings
(1) In general
(a) More transparent or more formalized because they occur in public
 (b) Improves or enhances accountability
(c) This can operate by threat but more often used in reality in contrast to others
(d) More obstacles to oversight hearing in times of unified government because everyone
is happy (most obstacles seems to be political)
(e) Less happy in times of divided government
(f) Rather than calling out agency, some sit back being complacent
(g) Oversight hearings: assert control or use to get information, hold a hearing in an
investigatory function, or to hold officials accountable or responsible (public blaming
or shamming); Congress can’t effect the past with the hearing, but perhaps Congress is
trying to scapegoat the administration for a statute that has gone bad
(2) Purpose
(a) ongoing oversight while agency action is pending
(b) public shamming or public airing after the fact, possibly with Congressional
intention of aiding the closing of holes in future legislation
(c) also gives Congress the opportunity to improve its public appearance
(d) might cause agency or administration to do better before the fact if its knows it can be
called out after the fact
(e) possibly the argument that enhance accountability during election times (but can’t
really made an effect at the present)
(3) Example:
(a) Gorsuch
i) Concern with the EPA not cleaning up the superfund sites; was not properly
exercising the authority that Congress had granted it
ii) Congress ran into a problem with executive privilege (EP protects confidential
conversations from congressional or judicial investigations)-EP is very rare and so
everyone is watching (most ppl don’t watch congressional hearings b/c they are
quite common); Here the President invoked executive privilege for one of senior
most cabinet officials, the Secretary of the EPA; Congress can file a contempt
charge to try and overcome the assertion of executive privilege; This situation ends
with Gorsuch resigning so she can give as much information as she wants; she
writes a book and says that she felt she was a scapegoat, experiment, or test case
and when it looked like the White House would not win, they threw her to the curb
(some bad stuff was happening)
(4) Normative Implications
(a) Might think good comes from it for accountability or rule of law or congress lending
its continuing oversight but EP can be an obstacle either legitimately or illegitimately
(5) Main Question
(a) How far does executive privilege extend?
b) Statutory Design Features
c) Legislative Vetoes
(1) Overview of Veto
(a) Positive Veto
i) Gives an agency conditional authority; An agency’s rules become effective or final
only after Congressional approval; This is consistent with Chadha b/c Congress is
giving the agency a fact finding function or assistant role; Here you have
bi-cameralism plus present; Congress is not required to designate final rulemaking
power but its actions; The agency does not have lawmaking power
(b) Layover provision
i) Congress directs and agency to submit to Congress all final regulations and
postpone the dates while Congress looks over the rules and issues a joint resolution
to pass a statute and disaffirm the view; The agency has law making power; This
okay after Chadha b/c Congress is doing what it has the power to do; what it
cannot do under Chadha is dispense with the lawmaking power
(2) INS v. CHADA case
(a) Background
i) Negative veto: AG can make a determination that someone should not be deported
and one house of congress can make a determination opposing this opinion, if
voted on by one house then the AG’s determination can be overruled
ii) Types of vetoes
(1) Positive veto
(a) Wait-laying over
(b) Approve rule
(2) Negative “one house” veto
(b) Facts
i) There is a statute and under the statute there are certain conditions that must be met
in order for Chadha to stay. INS says he did not meet the conditions, so he must go.
AG acting through the President says that he meets the conditions so Chadha
should stay. One house of Congress by LV says no Chanda does not meet the
conditions, so he must leave.
ii) INS conducts adjudication-Chadha should go; Immigration judge says that Chadha
would suffer “extreme hardship” if he would leave; INS says issues deportation;
AG is another layer (DOJ gets involved) and they said Chadha should stay; AG
suspends Chadha’s deportation; Congress by means of legislative veto says no
Chadha should go; SC says that Congress’s legislative veto violates the
constitutional requirements for legislation (bicameralism + presentment) and this is
not fair since the legislative veto has the same effect as legislation; Here, Congress
would normally have to enact new legislation but under LV one house of Congress
can assert control over agencies without the formalism of the legislative process
(c) Analysis
i) Courts isn’t always formalistic or else we would have a robost non-delegation
doctrine, so why is SC requiring this level of formalism here? SOP issue; One
house of congress is adjudicating Chadha’s case and ordinary the Constitution
would require some legislation or private bill, both houses have to agree to deport
Chadha and the President has to agree to deport Chadha; Protection of Individual
Rights; Legislative process is there to protect from a one branch tyranny, requires
both house plus the President to provide a check and a balance; don’t want
legislative despotism
ii) LV dispenses of with these presentments for some other factors; Look at White’s
dissent giving arguments in favor of the LV; More functional or pragmatic
reasoning: 1-some delegation is necessary (courts are not appropriate, hence the
intelligible principal requirement); 2-efficiency; 3-Checks and balances; since we
have this sort of 4th branch in agencies, they need to be checked; should worry
about executive despotism (we have a big monumental executive branch and it
needs to be checked)
iii) When congress undertakes legislative activity, it must use the congressional
method (bicameralism +presentment); This is highly formalistic despite the fact
that the court has not been that formal in its agency action
(1) Normative Grounds
(a) Serve a serious and real purpose in Constitution Structure, ensure no one
branch lawmaking (prevent legislative tyranny that the legislative veto
represents); Court Might be worried about incentives for Congress to enact
really broad delegations if LV is upheld; It might be too cheap and easy for
Congress to cave to the desires of automakers who can easily persuade one
branch of Congress; The “they” is only a slimmer of Congress, no full
legislative president-this is not law-according to Justice Scalia; Gives too
much power to the Congress that is sitting now despite the fact that they
did not pass the LV
(d) Rule
i) The law is that all negative legislative vetoes are unconstitutional because of this
worry of despotism
(e) Reasoning
 i) Perhaps congress has an incentive to write really vague (no need to put details in
up front when it is already really hard to pass the more narrow and detailed form of
legislation) because Congress knows that it will have the power to decide by one
house or one committee later; Counter: this enables Congress to enact more or
better statutes
(f) Holding
i) Affirm the court of appeals.
(g) Justice Powell’s concurrence in judgment only
i) Thinks case could have been decided on another ground; Congress can enact
legislation but not adjudicate cases that involved individual rights like Chadha’s
case; hence, Congress is violating the SOP b/c it is trying to use judicial power.
Chadha doesn’t have to be tried by article III courts (it could be tried by executive
courts or administrative courts) but not by the legislature. Should only rule out
legislative veto’s that have the effect of Congress taking on a judicial role but not
in all cases period. Hence, he probably would have let the NHTSA legislative veto
go.
(h) Justice White’s Dissent
i) Pragmatic or Functional View
(1) Nothing in the constitution prevents the LV
(2) The Constitutional might prefer it
(a) 1-under non-delegation cases, it is allowed for some broad delegation
(b) 2-worry about executive tyranny and allow congress to checks and
balances on this end
(c) 3-legislative behavior; makes it easier for Congress to do overcome
gridlock or enact some good legislation
(d) 4-subsequent coalitions has just as much as a right to direct policy b/c they
were elected or represent us today and the enacting congress approved of
this by enacting the LV to empower the current Congress; they had this in
mind
(e) 5-less worried that this one group could capture the entire Congress
(f) 6-In order to change the statutory disposition for Chadha, we must have
agreement between the President and Congress. We don’t have that here
b/c only the President says to keep him here. So under bi-cameralism +
presentment, he must go since no consensus.
(g) 7-he thinks that the main issue is with Congress trying to adjudicate
(i) Conclusion
i) Court invalidated the LV. Perhaps the courts should had permitted the experiment
or let it play out to test the assumptions.
(3) Bowsher v. Synar (pg. 706)
(a) Facts
i) Congress wants a tool that the courts prohibits, Congress wants a power that the
President has. Congress wants the power to remove the Comptroller General of the
US for cause. The Gramm-Rudman-Hollings Act; OMB determines if there is a
budget deficit and reports this to the Comptroller General and makes budget cuts.
The President implements those budget cut recommendations through the
sequestration. Comptroller General is in the Accounting Office; supposed to
oversee how the president spends money; a tool of Congress to watch Presidential
spending but the CG has never had this power given under the
Gramm-Rudman-Hollings Act
(b) Issue
i) To what extent can Congress seek direct means to control the removal of agency
officials?
(c) Rule
i) Congress cannot delegate “Executive functions” to an agent who is subject to its
control.
ii) If an agency possess executive functions, then it can’t be removable from Congress
(d) Analysis
 i) CG under this statute has executive functions and Congress can’t lodge executive
functions in an agency subject to its control. This is a separation of powers
argument. The court is concerned with the type of functions; doesn’t matter which
type of activity you have; according to chadha if power is a legislative functions
then it is required to go through bi-cameralism + presentment and if it is executive
functions then still can’t be right b/c delegating executive power to itself.
(e) Conclusion
i) Unconstitutional
(f) Steven’s concurrence
i) In General
(1) Bowsher in terms of Chadha
(2) If legislative, then it can’t be handled by a subset of Congress
ii) Reasoning
(1) Court or Public worry; Delegation concerns; Cheap and Easy; Interest groups
would need to get anything they need from Congress through the legislative
process (i.e.-bicameralism + presentment); Hard to trace lines of responsibility;
Timing Shifts with Subsequent Congresses; Congress doing budget is different
from congress who does the mandates; Here, the same congress who creates
the budget deficit is the same one who tells the CG they need to do something
about it
iii) Requirement
(1) These problems only occur if the CG is not really beholding to Congress;
Removal seems to be so connected with control; the person who has removal
power, gives this person strong control over the subordinate; Congress has the
power to remove the CG under this statute, but the sort of control Congress has
is really limited and specific
(2) Congress can only remove for cause for 5 specific reasons: 1-permanent
disability, 2-inefficiency, 3-neglect of duty, 4-malfeasance, 5-a felony or
conduct involving moral turpitude; Therefore this infers that Congress cannot
remove for policy disagreements
(3) Congress can abolish the office through legislation (this would be too extreme
here and would in essence be Congress shooting itself in the foot) or impeach
this specific officer (but impeachment is a long tedious process-intentionally
that way though to prevent from happening too often); So Justice White says
by contrast to impeachment, the removal provision is better. The majority says
that the removal power creates a here and now subservience-removal here is
easier under the constitution but the Congress also gets the picture (you know
who your daddy is)
iv) 1st Biggest point from Justice White
(1) The court is thinking about this statute in an entirely wrong way. In enacting
this statute, Congress recognized its own shortcomings, Congress is not able to
cut the deficit so it created this scheme. This scheme is a check on runaway
budget or runaway government and is fully in line with the Constitution. So the
purpose of this is to put some distance between the Congress and the budget,
the details are just incidental.
v) 2nd Biggest Point from Justice White
(1) Thinks independent agencies are in trouble, b/c they also possess executive
functions, so the president must be able to control executive functions
(according to the majority’s holding); however, the statues that create these
agencies, expressly limit the power of the president in his executive functions
in terms of Presidential removal. In essence, white says that the majority puts
itself in danger under the logic of Bowsher and its extreme formalism b/c
executive removal is just as bad as legislative removal.
vi) Question: How do you distinguish Bowsher to preserve independent agencies?
(1) Since, Bowsher says that agencies have executive power, how can the
President still have the power to remove agency heads?-early case Meyers says
that agency has executive functions (under Constitution) that cannot be limited
 vii) Myers case take away
(1) the president must control purely executive function; wasn’t that post master
hold purely executive functions, but the issue was that the President had to ask
Congress for permission to remove
viii) Humphrey’s case
(1) Congress can’t put itself back in once it delegates power (congress can’t
reclaim authority but it can limit Presidential removal power); Hence, we can
have independent agencies; When congress seeks to control agency’s actions
(then it must do so through legislative process of bicameralism + presentment)
and there officials (seek impeachment and that’s it); President has all the power
or is the head of the bureaucracy or administrative state under Article II even
though the Constitution does not say a lot about the administrative state
ix) Chadha
(1) Congress can’t have direct or truly distinct means of control
C. Judicial Control
1. Judicial Control of Agency Decisionmaking
a) In General
(1) Different from presidential and congressional control, b/c courts must wait
until a case is brought there way; courts are constrained in the types of
actions they can review; Courts can only exercise judicial control or judicial
review when the time is right
b) Benefits
(1) Rule of Law-agencies must consider the evidence
c) Cons
(1) When agencies exercise this tool a little to over zealously,
d) Tools
(1) Arbitrary and capricious test is one tool of judicial decision making
e) Case Example
(1) State Farm
(a) Facts
i) Road to state farm: Congress: 1966 Act; Agency: Standard 208 (admission
interlocks); Congress: banded standard 208; Agency: standard 208 delayed under
Ford administration; Agency: put standard 208 into effect but on a fairly standard
basis not including admission interlocks under the Carter administration; Agency:
standard 208 is rescinded under the Regan Administration; Courts: courts get
involved now and says give us standard 208
(b) PP
i) Standard of Review for Agency Actions
(1) Normally always look to organic statute which will specify, if it does not then
look at the APA; The APA specifies the arbitrary and capricious standard of
review; applies to notice and comment rule making and almost all agency
actions except formal proceedings (trial type hearings)-there substantial
evidence will apply (this is tougher and the agency has to do more work in
order to survive)
(2) *Although usually when an agency fails to move, they generally get a pass but
Here the court said no b/c the agency reversed its course (it issued action and
then reversed its course) so the standard or review is the “arbitrary and
capricious standard”
ii) Court of Appeals
(1) The agency decision to issue rescission was arbitrary and capricious.
 (c) Issue
i) Whether NHTSA acted arbitrarily and capricious in revoking the requirement of
the Motor Vehicle Safety Standard 208 that new motor vehicles produced after the
September 1982 be equipped with passive restraints to protect the safety of the
occupants of the vehicle in the event of a collision?
(d) Rule
i) *An agency rule would be deemed “arbitrary and capricious” if the agency does
certain things like:
(1) 1-relying on unimportant facts
(2) 2-fils to reminder important aspects of the problem
(3) 3-offers an explanation that runs contrary to the evidence
(4) 4-Makes a choice that is so implausible that it can’t be ascribed to a difference
of opinion
(a) courts are usually reluctant to call an agency out for this reason because the
court would in essence be putting there own; But does not allow reviewing
courts to substitute there judgment for that of the agency because agencies
have expertise (hence why they only reverse and remand instead of issuing
another policy
(b) Court judges this because it courts require an EXPLANATION
(c) Harder cases are when agencies supplies some information but there is still
a deficiency (but this usually takes courts back to the factors)
(e) Analysis
i) The agency fails to consider an alternative within the ambit of the existing
regulation. Here the agency fails to consider airbags only; the agency had a choice
it did not have to rescind the entire operation; the agency said it did not do this
because it was expensive but the court says no. Political accountability does not
give agency’s power to overcome the statute which says that safety is paramount.
NHTSA was also too quick to dismiss the data on automatic seatbelts. (the court
says that you should have read the Rabbitt-Chevette study). Agencies have to
explain the actual bases, if politics was under consideration, it must be clear about
this.
(f) Conclusion
i) Affirm court of appeals; The agency rule rescission was arbitrary and capricious.
Agency must either consider the matter further or adhere to or amend Standard 208
along line which its analysis supports
(g) Main Take Away
i) In theory the factors draw a line, but overall look at what the agency said, but don’t
substitute your judgment for the agencies because that would be against deference
to agency expertise.
2. Policymaking
3. Statutory Interpretation
a) Clear Statutory Provisions
b) Unreasonable Agency Interpretations
c) Deficient Administrative Procedures
4. Administrative Procedures
5. Availability of Judicial Review
a) Standing
b) Reviewability
6. Positive Descriptions of Judicial Control
VII. Conclusion