Pennhurst, Chevron, and the spending power

Yale Law Journal

Volumn 110, Issue 7, 2001, Pages 1187-1244

  Smith, Peter J ^a  

^a NONE

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EID: 0042409669     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797527     Document Type: Article

References (213)

1. See Younger v. Harris, 401 U.S. 37, 44 (1971) (invoking "Our Federalism" to justify refusal to enjoin pending state court proceedings).
2. Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 SUP. CT. REV. 71 (quoting the "etiquette of federalism" language from United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring)). Justices Stevens, Souter, Ginsburg, and Breyer have regularly dissented from the Court's recent federalism decisions. See, e.g., Alden v. Maine, 527 U.S. 706, 814 (Souter, J., dissenting) ("I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.").
3. See Lopez, 514 U.S. 549.
4. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); Gregory v. Ashcroft, 501 U.S. 452 (1991).
5. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); City of Boerne v. Flores, 521 U.S. 507 (1997).
6. See Kimel, 528 U.S. 62; Alden, 527 U.S. 706; Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Fla. Prepaid v. Coll. Sav. Bank, 527 U.S. 627; Seminole Tribe v. Florida, 517 U.S. 44 (1996).
7. South Dakota v. Dole, 483 U.S. 203, 207 (1987).
8. See U.S. CONST, art. I, § 8, cl. 1.
9. 451 U.S. 1 (1981).
10. Id. at 17.
11. See, e.g., Adler & Kreimer, supra note 2, at 106; Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1914 (1995).
12. See, e.g., Adler & Kreimer, supra note 2, at 106; Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1914 (1995).
13. See, e.g., Baker, supra note 11; Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 397 (1997); Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85.
14. See, e.g., Baker, supra note 11; Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 397 (1997); Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85.
15. See, e.g., Baker, supra note 11; Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 397 (1997); Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85.
16. 467 U.S. 837 (1984).
17. See Christensen v. Harris County, 120 S. Ct. 1655, 1662 (2000) (holding that "[i]nterpretations such as those in opinion letters - like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law - do not warrant Chevron-style deference"); cf. Am. Trucking Ass'ns v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (holding that the EPA's construction of the Clean Air Act effected an unconstitutional delegation of legislative power), modified on reh'g, 195 F.3d 4 (D.C. Cir. 1999), rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 121 S. Ct. 903 (2001).
18. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Chevron, 467 U.S. at 843-44. Under Chevron, a court reviewing an agency's interpretation of a statute defers to the agency's interpretation if the "statute is silent or ambiguous with respect to the specific issue" and if "the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843.
19. Chevron, 467 U.S. at 866 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)).
20. One commentator has quipped that "[t]he loss of forests necessary to make the paper to print all of the articles written on the proper standard of review in interpreting statutes following [Chevron] might well have justified requiring the Supreme Court to issue an environmental impact statement along with the opinion." Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, 57 LAW & CONTEMP. PROBS. 185, 229 n.116 (1994).
21. Cass Sunstein, for example, has argued that Chevron is best understood and defended as a frank recognition that sometimes interpretation is not simply a matter of uncovering legislative will, but also involves extratextual considerations of various kinds, including judgments about how a statute is best or most sensibly implemented. Chevron reflects a salutary understanding that these judgments of policy and principle should be made by administrators rather than judges. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2087-88 (1990). Peter Strauss has praised Chevron for a different reason. He noted that [t]he Supreme Court's practical inability in most cases to give its own precise renditions of statutory meaning virtually assures that circuit readings will be diverse. By removing the responsibility for precision from the courts of appeals, the Chevron rule subdues this diversity, and thus enhances the probability of uniform national administration of the laws. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987) (citation omitted). On the other hand, Cynthia Farina has criticized Chevron on the ground that it conflicts with the rationale for the delegation doctrine: "'Congress has been willing to delegate its legislative powers broadly - and the courts have upheld such delegation - because there is court review to assure that the agency exercises the delegated power within statutory limits.'" Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970 (1992) (discussing the "draconian implications of the [Chevron] doctrine for the balance of power among the branches").
22. Cass Sunstein, for example, has argued that Chevron is best understood and defended as a frank recognition that sometimes interpretation is not simply a matter of uncovering legislative will, but also involves extratextual considerations of various kinds, including judgments about how a statute is best or most sensibly implemented. Chevron reflects a salutary understanding that these judgments of policy and principle should be made by administrators rather than judges. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2087-88 (1990). Peter Strauss has praised Chevron for a different reason. He noted that [t]he Supreme Court's practical inability in most cases to give its own precise renditions of statutory meaning virtually assures that circuit readings will be diverse. By removing the responsibility for precision from the courts of appeals, the Chevron rule subdues this diversity, and thus enhances the probability of uniform national administration of the laws. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987) (citation omitted). On the other hand, Cynthia Farina has criticized Chevron on the ground that it conflicts with the rationale for the delegation doctrine: "'Congress has been willing to delegate its legislative powers broadly - and the courts have upheld such delegation - because there is court review to assure that the agency exercises the delegated power within statutory limits.'" Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970 (1992) (discussing the "draconian implications of the [Chevron] doctrine for the balance of power among the branches").
23. Cass Sunstein, for example, has argued that Chevron is best understood and defended as a frank recognition that sometimes interpretation is not simply a matter of uncovering legislative will, but also involves extratextual considerations of various kinds, including judgments about how a statute is best or most sensibly implemented. Chevron reflects a salutary understanding that these judgments of policy and principle should be made by administrators rather than judges. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2087-88 (1990). Peter Strauss has praised Chevron for a different reason. He noted that [t]he Supreme Court's practical inability in most cases to give its own precise renditions of statutory meaning virtually assures that circuit readings will be diverse. By removing the responsibility for precision from the courts of appeals, the Chevron rule subdues this diversity, and thus enhances the probability of uniform national administration of the laws. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987) (citation omitted). On the other hand, Cynthia Farina has criticized Chevron on the ground that it conflicts with the rationale for the delegation doctrine: "'Congress has been willing to delegate its legislative powers broadly - and the courts have upheld such delegation - because there is court review to assure that the agency exercises the delegated power within statutory limits.'" Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970 (1992) (discussing the "draconian implications of the [Chevron] doctrine for the balance of power among the branches").
24. Cass Sunstein, for example, has argued that Chevron is best understood and defended as a frank recognition that sometimes interpretation is not simply a matter of uncovering legislative will, but also involves extratextual considerations of various kinds, including judgments about how a statute is best or most sensibly implemented. Chevron reflects a salutary understanding that these judgments of policy and principle should be made by administrators rather than judges. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2087-88 (1990). Peter Strauss has praised Chevron for a different reason. He noted that [t]he Supreme Court's practical inability in most cases to give its own precise renditions of statutory meaning virtually assures that circuit readings will be diverse. By removing the responsibility for precision from the courts of appeals, the Chevron rule subdues this diversity, and thus enhances the probability of uniform national administration of the laws. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987) (citation omitted). On the other hand, Cynthia Farina has criticized Chevron on the ground that it conflicts with the rationale for the delegation doctrine: "'Congress has been willing to delegate its legislative powers broadly - and the courts have upheld such delegation - because there is court review to assure that the agency exercises the delegated power within statutory limits.'" Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970 (1992) (discussing the "draconian implications of the [Chevron] doctrine for the balance of power among the branches").
25. See Chevron, 467 U.S. at 843 n.11.
26. Id. at 843 ("'The power of an administrative agency to administer a congressionally . . . created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'" (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974))). But see Merrill, supra note 31, at 979 ("Yet how do we know that Congress, the ultimate democratic trump card, wants ambiguities and gaps to be resolved by agencies rather than by courts?").
27. See Chevron, 467 U.S. at 842-43.
28. Sunstein, supra note 31, at 2088-89.
29. Chevron, 467 U.S. at 865.
30. Id. at 844 (quoting United States v. Shimer, 367 U.S. 374, 382 (1961)).
31. Id. at 865.
32. U.S. CONST. art. I, § 8, cl.1.
33. See, e.g., South Dakota v. Dole, 483 U.S. 203, 206-07 (1987); United States v. Butler, 297 U.S. 1, 65 (1936). See generally David E. Engdahl, The Spending Power, 44 DUKE L.J. 1 (1994) (providing an overview of the spending power and of misconceptions about its scope).
34. See Helvering v. Davis, 301 U.S. 619, 640 (1937) ("The line must still be drawn between one welfare and another, between particular and general. . . . The discretion, however, is not confined to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.").
35. Butler, 297 U.S. at 66.
36. Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion of Burger, C.J.).
37. Dole, 483 U.S. at 207 (quoting Butler, 297 U.S. at 65). For a provocative article about the difference between congressional ends and means in the Spending Clause context, see Engdahl, supra note 40.
38. See Butler, 297 U.S. at 68-78 (invalidating various provisions of the Agricultural Adjustment Act of 1933 because they "invade[d] the reserved rights of the states" and because they had a "coercive purpose and intent"). The Court sharply changed direction one year later in Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937), which upheld a tax imposed on employers by the Social Security Act and conditional grants under that statute, and rejected the claim that the Act "involv[ed] the coercion of the States in contravention of the Tenth Amendment or of restrictions implicit in our federal form of government."
39. Dole, 483 U.S. at 207 (quoting U.S. CONST. art. I, § 8, cl. 1 and citing Helvering, 301 U.S. at 640-41, and Butler, 297 U.S. at 65).
40. Id. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). This limitation is often referred to as a "germaneness" or "relatedness" limitation. See id. at 208 n.3.
41. Id. at 210. The Court has referred to this limitation as the "independent constitutional bar" limitation. Id.
42. Id. at 211 (quoting Steward Mach. Co., 301 U.S. at 590). Notwithstanding this limit on the spending power, the Court has suggested that "[i]f Congress enact[s a statute] with the ulterior purpose of tempting [the states] to yield, that purpose may be effectively frustrated by the simple expedient of not yielding." Massachusetts v. Mellon, 262 U.S. 447, 482 (1923). Such a view of state choice, however, presumably would apply regardless of how tempting the offer is. Nevertheless, the Court continues to articulate the "coercion" limitation on the spending power, and at least some members of the judiciary have indicated a willingness to take that limitation seriously. See Va. Dep't of Educ. v. Riley, 106 F.3d 559, 569-70 (4th Cir. 1997) (en banc) (opinion of Luttig, J.).
43. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). See generally Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 189 ("Of these four conditions, only the [clear-statement rule] has any effect on structuring spending power.").
44. 451 U.S. 1.
45. 89 Stat. 486 (codified as amended at 42 U.S.C.S. § 15001 (Law. Co-op., LEXIS through 2000 legislation)).
46. Pennhurst, 451 U.S. at 11.
47. Id.
48. Id. at 7.
49. The provision states, in relevant part, that (1) "[p]ersons with developmental disabilities have a right to appropriate treatment"; (2) such treatment "should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty"; and (3) the "Federal Government and the States both have an obligation to assure that public funds are not provided to any institutio[n] . . . that - (A) does not provide treatment . . . which is appropriate to the needs of such person; or (B) does not meet the following minimum standards." Id. at 13 (quoting 42 U.S.C. § 6010 (1976)).
50. Id. at 13-14.
51. Id. at 17.
52. Id. (citing Edelman v. Jordan, 415 U.S. 651 (1974); Employees v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 285 (1973)).
53. Id.
54. Id. at 17.
55. Id. at 22-23.
56. Id. at 23.
57. Id. at 23-27 (noting the "well-settled distinction between congressional 'encouragement' of state programs and the imposition of binding obligations on the States," and stating that Congress "understood the difference, financial and otherwise, between encouraging a specified type of treatment and mandating it").
58. Id. at 24-25. The Court also rejected the suggestion that Congress passed the Act pursuant to its power to enforce the Fourteenth Amendment and that, in doing so, Congress intended to create rights enforceable against the states. See id. at 18-22.
59. But cf. Lessig, supra note 50, at 188 ("If the Court's job were simply to find Congress's meaning, then it would have no right to impose on Congress anything like a clear statement rule. But the Court is not simply the handmaiden of Congress. Its duty is also to the Constitution. The question is how best it can satisfy that duty.").
60. Under current doctrine, Congress may validly impose binding requirements, such as minimum wages and antidiscrimination mandates, on states, see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); EEOC v. Wyoming, 460 U.S. 226 (1983), but may not authorize private suits to enforce those rights unless Congress acts to enforce the Fourteenth Amendment, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999).
61. E.g., Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REV. 1103 (1987).
62. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987); United States v. Butler, 297 U.S. 1 (1936); Baker, supra note 11, at 1916.
63. Professor Lynn Baker, for example, has argued that because the federal government has "a monopoly power over the various sources of state revenue," states (at least, that is, states that would not, if given a completely free choice, accept the conditions attached) must acquiesce in the federal conditions in order to secure a "return" of the state's "own" money. Baker, supra note 11, at 1935-36; see also id. at 1973-74 (discussing coercion). I briefly respond to this argument infra notes 117-120 and accompanying text.
64. See, e.g., United States v. Lopez, 514 U.S. 549, 566 (1995).
65. 469 U.S. 528.
66. Id. at 550-54.
67. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 839-45 (1995) (Kennedy, J., concurring); Garcia, 469 U.S. at 551; Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
68. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 839-45 (1995) (Kennedy, J., concurring); Garcia, 469 U.S. at 551; Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
69. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 856 (3d ed 2000); Lessig, supra note 50, at 207.
70. Of course, there may be little reason to doubt the efficacy of these structural protections even absent Pennhurst's clear-statement rule. Because states rarely are eager to assume costly obligations imposed by federal law, state officials are likely to protest - loudly, publicly, and often - whenever the federal government contends that federal law requires the state to take (or refrain from taking) action that the state would not take (or refrain from taking) if federal law did not so require. Indeed, this same criticism applies to the Court's decision in New York v. United States, 505 U.S. 144 (1992), which prohibits Congress from directing state legislative action largely on the grounds that when Congress orders the states to take regulatory action, the political accountability of federal officials is undermined. See generally Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199 (critiquing the formalism of the Court's anticommandeering decisions); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998) (critiquing the Court's categorical prohibition of executive commandeering, and proposing a more nuanced approach to judicial enforcement of federalism limits). More importantly, before the Court's decision in Pennhurst, the courts determined whether Congress had attached conditions to the grant of federal funds according to traditional canons of statutory construction. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (holding, after "carefully analyz[ing] the four factors that Cort [v. Ash, 422 U.S. 66 (1975),] identifies as indicative of" congressional intent, that Title IX authorizes a private right of action against a recipient of federal funds); Rosado v. Wyman, 397 U.S. 397, 407-15 (1970) (holding, after examining the language and legislative history of the Aid to Families with Dependent Children program, as well as "basic axiom[s]" of statutory construction, that the statute required state recipients to reevaluate equations for determining need). At bottom, then, even in the pre-Pennhurst regime, courts concluded that state recipients of federal funds were bound by a particular statutory provision only when Congress so intended. And because states presumably were aware of how courts divined congressional intent, a court's conclusion that Congress intended to attach a particular string to a federal grant would not (at least in theory) come as a surprise to the state.
71. Of course, there may be little reason to doubt the efficacy of these structural protections even absent Pennhurst's clear-statement rule. Because states rarely are eager to assume costly obligations imposed by federal law, state officials are likely to protest - loudly, publicly, and often - whenever the federal government contends that federal law requires the state to take (or refrain from taking) action that the state would not take (or refrain from taking) if federal law did not so require. Indeed, this same criticism applies to the Court's decision in New York v. United States, 505 U.S. 144 (1992), which prohibits Congress from directing state legislative action largely on the grounds that when Congress orders the states to take regulatory action, the political accountability of federal officials is undermined. See generally Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199 (critiquing the formalism of the Court's anticommandeering decisions); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998) (critiquing the Court's categorical prohibition of executive commandeering, and proposing a more nuanced approach to judicial enforcement of federalism limits). More importantly, before the Court's decision in Pennhurst, the courts determined whether Congress had attached conditions to the grant of federal funds according to traditional canons of statutory construction. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (holding, after "carefully analyz[ing] the four factors that Cort [v. Ash, 422 U.S. 66 (1975),] identifies as indicative of" congressional intent, that Title IX authorizes a private right of action against a recipient of federal funds); Rosado v. Wyman, 397 U.S. 397, 407-15 (1970) (holding, after examining the language and legislative history of the Aid to Families with Dependent Children program, as well as "basic axiom[s]" of statutory construction, that the statute required state recipients to reevaluate equations for determining need). At bottom, then, even in the pre-Pennhurst regime, courts concluded that state recipients of federal funds were bound by a particular statutory provision only when Congress so intended. And because states presumably were aware of how courts divined congressional intent, a court's conclusion that Congress intended to attach a particular string to a federal grant would not (at least in theory) come as a surprise to the state.
72. Of course, there may be little reason to doubt the efficacy of these structural protections even absent Pennhurst's clear-statement rule. Because states rarely are eager to assume costly obligations imposed by federal law, state officials are likely to protest - loudly, publicly, and often - whenever the federal government contends that federal law requires the state to take (or refrain from taking) action that the state would not take (or refrain from taking) if federal law did not so require. Indeed, this same criticism applies to the Court's decision in New York v. United States, 505 U.S. 144 (1992), which prohibits Congress from directing state legislative action largely on the grounds that when Congress orders the states to take regulatory action, the political accountability of federal officials is undermined. See generally Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199 (critiquing the formalism of the Court's anticommandeering decisions); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998) (critiquing the Court's categorical prohibition of executive commandeering, and proposing a more nuanced approach to judicial enforcement of federalism limits). More importantly, before the Court's decision in Pennhurst, the courts determined whether Congress had attached conditions to the grant of federal funds according to traditional canons of statutory construction. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (holding, after "carefully analyz[ing] the four factors that Cort [v. Ash, 422 U.S. 66 (1975),] identifies as indicative of" congressional intent, that Title IX authorizes a private right of action against a recipient of federal funds); Rosado v. Wyman, 397 U.S. 397, 407-15 (1970) (holding, after examining the language and legislative history of the Aid to Families with Dependent Children program, as well as "basic axiom[s]" of statutory construction, that the statute required state recipients to reevaluate equations for determining need). At bottom, then, even in the pre-Pennhurst regime, courts concluded that state recipients of federal funds were bound by a particular statutory provision only when Congress so intended. And because states presumably were aware of how courts divined congressional intent, a court's conclusion that Congress intended to attach a particular string to a federal grant would not (at least in theory) come as a surprise to the state.
73. See Va. Dep't of Educ. v. Riley, 106 F.3d 559, 561-72 (4th Cir. 1997) (en banc) (adopting the dissenting panel opinion of Luttig, J., originally at 86 F.3d 1337, 1347 (4th Cir. 1996) (panel opinion) (Luttig, J., dissenting), as the majority opinion after a brief per curiam opinion).
74. Note also that application of the accountability model often will result in different standards and obligations depending on whether a recipient of federal funds is a state or private entity. Pennhurst's rule applies only to state recipients of federal funds. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) ("By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation."). When Congress imposes conditions on private recipients of federal funds, the same federalism concerns are not present. Application of the accountability model to grant programs that provide funds to both private and state entities therefore creates the possibility that an agency interpretation of an ambiguous condition will, under Chevron, bind the private recipients but not the state ones. Under the accountability model, therefore, the same statutory grant provision can have different meanings, depending on the status of the party that accepts funds.
75. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 316 (2000).
76. Id. at 316-17.
77. Id. at 317.
78. There is, however, a significant limitation in treating Pennhurst's rule according to this account. The other nondelegation canons that Professor Sunstein discusses do not substantially impair an entire source of Congress's affirmative authority. Treating Pennhurst's clear-statement rule as a nondelegation canon (that is, viewing Pennhurst through the accountability model) arguably imposes more than a minor procedural obstacle to Congress's ability to legislate pursuant to the spending power, instead converting that rule into a substantive limitation on Congress's power to spend with strings attached. It is perhaps for this reason that Professor Sunstein does not include Pennhurst's rule in his discussion of the nondelegation canons.
79. See, e.g., Lessig, supra note 50, at 131.
80. See, e.g., United States v. Butler, 297 U.S. 1 (1936); see also Nat'l League of Cities v. Usery, 426 U.S. 833 (1976); Hammer v. Dagenhart, 247 U.S. 251 (1918).
81. Gregory v. Ashcroft, 501 U.S. 452 (1991).
82. See infra notes 124-136 and accompanying text.
83. Indeed, the Court in Pennhurst itself suggested that agency interpretations of grant conditions could, under appropriate circumstances, bind a state recipient. As explained above, Pennhurst concerned whether a provision of a federal statute that stated generalized congressional aspirations created rights enforceable by individuals whom the statute was designed to benefit. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 8-9 (1981). The Court's decision turned on Congress's failure to indicate clearly that the provision stated a binding condition on the states' receipt of funds under the Act. The Court did not address, however, the degree of specificity required once Congress unambiguously imposes some condition on the receipt of funds. If anything, the Court's decision in Pennhurst supports the view that agency interpretations of statutory grant conditions can, in appropriate circumstances, bind state recipients of federal funds. Because the Court concluded that in the Act's "bill of rights" provision, 42 U.S.C. § 6010 (1976), Congress did not unambiguously create a condition for the receipt of federal funds under the Act, the Court had no occasion to consider the precise contours of any condition imposed by the Act. In reaching its conclusion that Congress did not clearly intend the provision to be a condition, however, the Court relied in part on the fact that the Secretary of Health and Human Services, the agency charged with enforcing the Act, had concluded that "[n]o authority was included in the Act to allow the Department to withhold funds from States on the basis of failure to meet the findings" of the bill of rights provision. Pennhurst, 451 U.S. at 23 (quoting Developmental Disabilities Program, 45 Fed. Reg. 31,006 (May 9, 1980)). The Court reasoned that "it strains credulity to argue that participating States should have known of their 'obligations' under § 6010 when the Secretary of HHS . . . has never understood § 6010 to impose conditions on participating States." Id. at 25. In considering the agency's interpretation of the relevant statutory provision, the Court did not purport to apply any form of (pre-Chevron) deference; indeed, the Court suggested that the Secretary's position merely confirmed that the Act did not clearly impose any condition. Nevertheless, by referring to the Secretary's published view in determining whether states "should have known of their 'obligations'" under the Act, the Court implied that an agency's interpretation of a statutorily expressed condition might suffice to give states adequate notice of the conditions with which they must comply upon accepting federal funds.
84. 106 F.3d 559 (4th Cir. 1997) (en banc).
85. 20 U.S.C. §§ 1411-1420 (1994) (§ 1420 was repealed in 1997). Section 1412(1) provided that all state recipients must "have in effect a policy that assures all children with disabilities the right to a free appropriate public education." See id. § 1412(1) (repealed in 1997).
86. Riley, 106 F.3d at 561-72 (reproducing Judge Luttig's dissent in the panel opinion after a brief per curiam opinion by the majority). Six members of the court (including Judge Luttig) adopted as their own without change Judge Luttig's dissent from the panel decision. See id. at 560 (opinion of Luttig, J., joined by Wilkinson, C.J., and Russell, Widener, Wilkins, and Williams, JJ.). Three other judges concurred in the judgment and expressly concurred in Part I of Judge Luttig's opinion, which contained Judge Luttig's conclusion that Congress had not spoken with the requisite clarity and included his conclusion that Chevron deference would be inappropriate. Judge Niemeyer wrote a separate opinion concurring "in part I of the opinion adopted by the majority and in the judgment of the court." Id. at 572 (Niemeyer, J., concurring in part). Judge Hamilton, joined by Judge Ervin, wrote a separate opinion, stating: "Because Part I of the majority opinion, with which I am in complete accord, adequately disposes of the matter, I would not reach the Tenth Amendment analysis. Accordingly, I concur in Part I of the majority opinion and in the judgment of the court." Id. (Hamilton, J., concurring in the judgment). Two judges concurred in the judgment. Judge Michael wrote a separate opinion, stating: "Because I agree with the point in the majority's adopted opinion that the right here can be forfeited, I concur in the judgment." Id. (Michael, J., concurring in the judgment). Judge Motz filed a separate opinion, stating: For many of the reasons explained in Part I of Judge Luttig's dissent from the opinion of the panel majority, I do not believe Congress has unambiguously required the states to provide educational services to disabled children who have been suspended or expelled for misconduct unrelated to their disabilities. Accordingly, I join the court's judgment. Id. (Motz, J., concurring in the judgment). Therefore, at least nine judges (and possibly ten) agreed that the Pennhurst doctrine prevents application of Chevron deference to an agency regulation that construes a statutory condition on the grant of federal funds to the states.
87. Id. at 567. Indeed, the court reasoned that because Garcia "has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise." Id. at 567 (quoting Gregory v. Ashcroft, 501 U.S. 452, 464 (1991)). Judge Murnaghan dissented, reiterating his belief, expressed in his opinion for the panel majority, that the statute was unambiguous in its requirement that states provide educational services. Id. at 579 (Murnaghan, J., dissenting). Judge Hall filed a separate dissent. He agreed with the majority that the provision of IDEA at issue "is arguably not an unambiguous expression of Congressional intent that such services be provided," but "disagree[d] with the majority's view that 'the deference that we ordinarily afford agency interpretations of ambiguous statutes is inapplicable in a case such as this.'" Id. at 580 (Hall, J., dissenting) (quoting Va. Dep't of Educ. v. Riley, 86 F.3d 1337, 1351 n.4 (4th Cir. 1996) (Luttig, J., dissenting)). In Judge Hall's view, the issue was "whether we will require that Congress itself define in unmistakable statutory terms each and every string that is or may ever be attached to a State's receipt of funds under a cooperative funding program," or instead will "defer to a reasonable interpretation made by the federal agency to which Congress has delegated the job of operating the program." Id. He argued that in "choosing the former, the majority eviscerates the rule of Chevron and establishes a 'clear-statement rule' that is as unprecedented as it is unworkable." Id. Judge Hall also pointed out an anomaly created by the court's decision. The Fourth Circuit in recent years has applied Chevron deference (or recognized the applicability of Chevron's framework) to administrative interpretations of ambiguous statutory provisions in federal-state grant programs when the agency interpretation favors, as opposed to burdens, the state. As a result, the current state of the law in the Fourth Circuit, in light of Riley, is that when a private party has a dispute with a state about the proper interpretation of a condition in a federal grant program, the court applies Chevron if the state agrees with the agency's interpretation. When, on the other hand, the state disagrees with the agency's interpretation of an ambiguous-condition-creating statutory provision, the court refuses to apply Chevron and resolves the dispute in favor of the state. See Rehab. Ass'n v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994) (recognizing the applicability of Chevron's framework to the question of whether a spending enactment imposes a burden on states); Mowbray v. Kozlowski, 914 F.2d 593, 600-01 (4th Cir. 1990) (applying Chevron deference to an agency interpretation of a Spending Clause enactment that benefited a state). The Seventh Circuit followed Riley in Doe v. Board of Education, 115 F.3d 1273 (7th Cir. 1997), but did not discuss the Chevron issue. Cf. Cefalu v. E. Baton Rouge Parish Sch. Bd., 103 F.3d 393, 404 (5th Cir. 1997) (Barksdale, J., dissenting) ("The IDEA does not unambiguously condition the State's receipt of federal funds on its proving the infeasibility of providing services to disabled students attending private school voluntarily."). A district court in Arizona, on the other hand, disagreed with Riley, concluding that IDEA clearly imposed a duty to provide educational services to students disciplined for non-disability-related reasons, and that, in any event, the Department of Education's interpretation is entitled to deference. Magyar v. Tucson Unified Sch. Dist., 958 F. Supp. 1423, 1436-40 (D. Ariz. 1997). The court did not discuss the Pennhurst issue. Less than four months after the Fourth Circuit's decision in Riley (and one month after the Seventh Circuit's decision in Doe), Congress amended IDEA to ensure that states provide educational services even to disabled children expelled from school for misconduct unrelated to their disabilities. Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, § 612(a)(1)(A), 111 Stat. 37, 60 (codified at 20 U.S.C.A. § 1412(a)(1)(A) (West 2000)). The Senate Report stated that the amendment was a "clarification[]." S. REP. No. 105-17, at 11 (1997); see also Amos v. Md. Dep't of Pub. Safety and Corr. Servs., 126 F.3d 589, 614-15 n.* (4th Cir. 1997) (Murnaghan, J., dissenting in part) (calling the majority's reliance on Riley "questionable" in light of the IDEA amendment).
88. As a doctrinal matter, the Fourth Circuit's decision seems clearly incorrect. In Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999), and Irving Independent School District v. Tatro, 468 U.S. 883 (1984), the Supreme Court deferred to regulations of the Department of Education in deciding that IDEA (and its predecessor, the Education of the Handicapped Act (EHA), 20 U.S.C. §§ 1401(19), 1414(a)(5)) imposed specific conditions on state grant recipients. See Garret F., 526 U.S. at 68-69 (holding that IDEA "requires a public school district in a participating State to provide a ventilator-dependent student with certain nursing services during school hours"); Tatro, 468 U.S. at 895 (holding that EHA required grant recipients to provide disabled students with certain catheterization services during school hours); see also Honig v. Doe, 484 U.S. 305, 325 n.8 (1988) (holding that the Department of Education's definition of the phrase "change in placement," which Congress stated in IDEA but did not define with specificity, is entitled to Chevron deference). Indeed, the Court in Tatro noted that "[t]he obligation to provide special education and related services is expressly phrased as a 'conditio[n]' for a state to receive funds under the Act," 20 U.S.C. § 1412, and thus that application of those requirements did not violate Pennhurst. 468 U.S. at 891 n.8. In addition, the Supreme Court has made clear in Spending Clause cases decided after Gregory that Pennhurst's clear-statement principle does not require Congress unambiguously to explain how a generalized prescription will apply in every conceivable particularized application. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649-53 (1999) ("Congress need not 'specifically identify and proscribe' each condition in the legislation." (quoting Bennett v. Ky. Dep't. of Educ., 470 U.S. 656, 665-66 (1985))); see also Bell v. New Jersey, 461 U.S. 773, 790 n.17 (1983) (holding that Pennhurst applies to determine when Congress has imposed a condition, not to determine the remedies available against a noncomplying state). Justice Kennedy, however, has, in dissent, indicated a willingness to apply the model. See Davis, 526 U.S. at 669 (Kennedy, J., dissenting) (arguing that agency regulations neither "could [n]or did provide states the notice required by our Spending Clause principles"). Justice Kennedy's dissent was, to be sure, couched in terms of notice. But in suggesting that agency interpretations of ambiguous statutory grant conditions categorically cannot give the states adequate notice, Justice Kennedy effectively argued that Congress, and Congress alone, must make clear a particularized application of a grant condition. He thus in effect argued for application of the accountability model.
89. 20 U.S.C. § 1412(1).
90. Riley, 106 F.3d at 566.
91. Id. at 563. Of course, if the court were correct in this conclusion, then the agency's interpretation of the provision categorically to require educational services to "all children with disabilities" arguably would not be reasonable and thus would fail under Chevron's step two. But the court's interpretation of the word "right" begs the question of who gets to decide, in the first instance, what the statute requires.
92. Id. at 567.
93. The Act defines "child with a disability" to mean "a child . . . (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance[,] . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services." 20 U.S.C.A. § 1401(3) (West 2000).
94. See id. (defining "child with a disability" to include a child with a "serious emotional disturbance").
95. See id. (defining "child with a disability" to include a child with "other health impairments"); cf. Murphy v. United Parcel Serv., 527 U.S. 516 (1999) (holding that the decision whether an employee's impairment "substantially limits" one or more major life activities under ADA is made with reference to the mitigating measures he employs).
96. 20 U.S.C. § 1681 (a) (1994).
97. Cf. Lau v. Nichols, 414 U.S. 563 (1974) (considering whether the Civil Rights Act of 1964 prohibits policies with a disparate impact).
98. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
99. Cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (holding that same-sex harassment may violate Title VII of the Civil Rights Act of 1964).
100. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 530 (1982).
101. As discussed infra notes 179-196 and accompanying text, the Title IX hypothetical raises difficult questions about timing and notice to states.
102. See supra notes 66-69 and accompanying text.
103. See supra note 38 and accompanying text.
104. It also is not clear, as a descriptive matter, that the states' interests are better accommodated in Congress than by agencies. There are substantial constraints on agencies' ability to issue regulations, see, e.g., Motor Vehicle Mfr. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (holding that an agency must justify a regulation by examining data and articulating a rationale), and states, like private parties, can comment on agencies' proposed rules.
105. See supra notes 32-38 and accompanying text.
106. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 22-23 (1981).
107. Id. at 17.
108. Id.
109. Id.
110. Id.
111. Compare South Dakota v. Dole, 483 U.S. 203, 217 (1986) (O'Connor, J., dissenting) ("If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives 'power to the Congress to tear down the barriers, to envade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.'"), and Rosenthal, supra note 68, at 1135 ("[T]he dependence of the states or local government upon federal funds may have become so great as to destroy the possibility of an effective choice."), with Massachusetts v. Mellon, 262 U.S. 447, 482 (1923) ("If Congress enact[s a statute] with the ulterior purpose of tempting [the states] to yield, that purpose may be effectively frustrated by the simple expedient of not yielding.").
112. Baker, supra note 11, at 1935.
113. Id. at 1937; see also id. at 1973-74 (discussing coercion). In Professor Baker's words: A conditional offer of federal funds to the states implicitly divides them into two groups: (1) states that already comply, or without financial inducement would happily comply, with the funding condition(s), and for which the offer of federal money therefore poses no real choice; and, (2) states that find the funding condition(s) unattractive and therefore face the choice of foregoing the federal funds in order to avoid complying with the condition(s), or submitting to undesirable federal regulation in order to receive the offered funds. When the federal government makes a conditional offer of funds, states in the second group are severely constrained in their decisionmaking by the lack of equivalent, alternative sources of revenue. Id. at 1935-36. In effect, in Professor Baker's view, a minority of states are likely to be forced to cede to the will of the majority of states. As a result, she proposes that courts presume invalid any conditional offer of federal funds to the states that would, if accepted, regulate the states in ways that Congress could not directly mandate; the presumption would be rebutted if the spending simply states the purpose for which the states should spend the funds and "reimburses," in whole or in part, expenditures for that purpose. Id. at 1962-63.
114. Indeed, the fundamental flaw in Professor Baker's argument is that it is, at bottom, antimajoritarian. The argument ignores the fact that in any representative democracy - including the United States (in contrast to the individual states of the Union) - the will of the minority (here, the states that have a majority of citizens who disagree with federal policy) must be, absent some independent antimajoritarian limitation (such as the First Amendment), subordinate to the will of the majority. Indeed, Professor Baker's argument would logically extend to preventing Congress from enacting laws clearly within its affirmative powers to which the people of a minority of states object. Yet it cannot be that, for example, federal gun-control legislation is invalid merely because the citizens of New Hampshire and Texas object.
115. When Congress acts pursuant to its spending powers, it gives the states a choice to maintain primary control over most matters of governance within the scope of the grant, with the obvious exception that the states are bound by the federal conditions (with which they might not, in the absence of federal action, have independently complied).
116. See, e.g., Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5 (1988); Robert L. Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
117. See, e.g., Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5 (1988); Robert L. Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
118. See, e.g., Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5 (1988); Robert L. Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
119. See, e.g., Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5 (1988); Robert L. Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
120. Compare Baker, supra note 11, at 1938 (comparing the plight of states that are dependent on the federal government for funds to welfare recipients), and Rosenthal, supra note 68, at 1135 (rejecting the contention that "the notion of duress, as imposed upon a governmental unit, is . . . an inappropriate one because it is an 'anthropomorphism' that is not conducive to logical analysis"), with Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1254 (1977) ("Debating whether conditions on federal grants . . . 'coerce' the states is an unhelpful anthropomorphism."). See generally Edward L. Rubin & Malcolm Feely, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 912 (1994) (outlining competing positions).
121. Compare Baker, supra note 11, at 1938 (comparing the plight of states that are dependent on the federal government for funds to welfare recipients), and Rosenthal, supra note 68, at 1135 (rejecting the contention that "the notion of duress, as imposed upon a governmental unit, is . . . an inappropriate one because it is an 'anthropomorphism' that is not conducive to logical analysis"), with Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1254 (1977) ("Debating whether conditions on federal grants . . . 'coerce' the states is an unhelpful anthropomorphism."). See generally Edward L. Rubin & Malcolm Feely, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 912 (1994) (outlining competing positions).
122. Sandoval v. Hagan, 197 F.3d 484, 495 (11th Cir. 1999) (citing Bennett v. Ky. Dep't of Educ., 470 U.S. 656, 666-69 (1985)), cert. granted sub nom. Alexander v. Sandoval, 121 S. Ct. 28 (2000).
123. Cases decided before Pennhurst, moreover, consistently held that reasonable agency interpretations of ambiguous statutory grant conditions could bind state recipients of federal funds. See Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (construing the Public Works Employment Act of 1977, 42 U.S.C. § 6701, and stating that the Court has "repeatedly upheld" Congress's use of "the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with statutory and administrative directives" (emphasis added)); see also, e.g., Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 592 (1983) (stating that the basic framework for deference to administrative interpretations of ambiguous statutory provisions applies in federal-state grant programs); Lau v. Nichols, 414 U.S. 563 (1974) (relying on Department of Health, Education and Welfare (HEW) regulations in construing Title VI's general proscription on discrimination to include policies with a disparate impact); id. at 571 (Stewart, J., concurring) (applying pre-Chevron deference to administrative interpretations); Rosado v. Wyman, 397 U.S. 397, 415 (1970) (deferring to HEWs interpretation of the statutory provision governing the Aid to Families with Dependent Children program); King v. Smith, 392 U.S. 309, 334-35 (1968) (Douglas, J., concurring) (deferring to HEW's interpretation of the statutory provision governing the AFDC program); Oklahoma v. Civil Serv. Comm'n, 330 U.S. 127, 143-46 (1947) (construing the Hatch Act, 18 U.S.C. § 61l, which prohibited employees of state agencies whose work was funded in part by federal grants from actively participating in "political management or the political campaigns" and deferring to the interpretation of the U.S. Civil Service Commission that defined service on a political committee as a forbidden activity under the Act).
124. 470 U.S. 656.
125. Id. at 666.
126. Id. at 669. The Court in Bennett judged the validity of an effort by the Secretary of Education to recover from Kentucky funds granted under Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 2701, which provides federal grants to support state and local education programs for disadvantaged children. In 1970, Congress amended the Act to require that Title I funds be used to "supplement and, to the extent practical, increase the level of funds" that states and localities expend for the education of indigent children. Id. at 660 (citing 20 U.S.C. § 241e(a)(3)(B) (1970)). Shortly after Congress enacted the 1970 amendments, the Department of Education promulgated regulations that prohibited states from using Title I funds to "supplant" their own contributions for the education of disadvantaged children. Id. (citing 45 C.F.R. § 116.17(h) (1974)). After a federal audit concluded that Kentucky had used Title I funds to defray substantially all the costs of educating disadvantaged students in one of the state's programs, the Secretary demanded repayment of Title I funds. Bennett, 470 U.S. at 660-61. Relying on Pennhurst, the state argued (and the court of appeals agreed) that the state did not accept Title I funds "with 'knowing acceptance' of the condition the Secretary now seeks to impose." Id. at 662 (quoting Kentucky v. Sec'y of Educ., 717 F.2d 943, 950 (6th Cir. 1983)). The Court did not explicitly apply Chevron deference to the agency regulations at issue in Bennett. The Court's ultimate conclusion - that Kentucky "clearly violated existing statutory and regulatory provisions that prohibited supplanting," id. at 670, and that "[b]oth the statutory provision and the implementing regulations expressly required that Title I funds not be used to supplant state and local funds for the pupils participating in Title I programs," id. at 671 - seemed to turn as much on Chevron step one as on Chevron step two. Nevertheless, the Court recognized that Congress cannot be expected explicitly to anticipate every possible contingency and that, as a result, agencies often will be required to interpret the scope of the conditions that Congress imposes. Id. at 669. In addition, the Court implicitly recognized that the Department of Education's interpretation of the condition at issue was reasonable. Id. at 669-73. Finally, the Court clearly held that the Secretary correctly sought repayment of federal funds used in fiscal year 1974 because Kentucky had violated "then-existing requirements" - including requirements imposed by regulations that elaborated on the condition-creating statute. Id. at 673. At
127. See, e.g., Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 427, 431 (1987) (holding that Department of Housing and Urban Development regulations implementing the Brooke Amendment to the Housing Act of 1937, 42 U.S.C. § 1401 (1970), created rights enforceable by tenants under 42 U.S.C. § 1983; applying Chevron deference; and rejecting the respondent's Pennhurst argument); Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 262, 269-70 (1985) (deferring to the Department of the Interior's interpretation of the Payment in Lieu of Taxes Act, 31 U.S.C. § 6901, and rejecting the state's federalism-based claims, concluding that the statute was sufficiently clear to impose the condition at issue). In Suter v. Artist M., 503 U.S. 347 (1992), the Court concluded that the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679(a) (1988), does not confer rights enforceable under § 1983, because the regulations implementing the Act "are not specific and do not provide notice to the States that failure to do anything other than submit a plan with the requisite features, to be approved by the Secretary, is a further condition on the receipt of funds from the Federal Government." 503 U.S. at 362. The Court's inquiry, however, was consistent with the state choice model, because the Court considered whether agency regulations interpreting the statutory condition - as opposed to the statutory text itself - are sufficiently specific and clear to give notice to the states that failure to comply subjects them to private suits for enforcement. See also Blessing v. Freestone, 520 U.S. 329, 335 (1997) (holding that Title IV-D of the Social Security Act does not give individuals a federal right to sue states to enforce conditions).
128. 42 U.S.C. § 2000d (1994).
129. 29 U.S.C. § 794 (1994).
130. 20 U.S.C. § 1681(a) (1994).
131. 29 U.S.C.A. § 794 (West Supp. 2000) ("No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ."); 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.").
132. 20 U.S.C. § 1681(a) ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .").
133. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643 (1999) (considering student-on-student sexual harassment and stating that "the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain non-agents"); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288, 292-93 (1998) (considering teacher-on-student sexual harassment and relying on Department of Education regulations); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522 n.12 (1982) (holding that Title IX prohibits sex discrimination in employment relationships in educational programs and recognizing a framework of deference); cf. Sch. Bd. v. Arline, 480 U.S. 273, 279, 286 n.15 (1987) (relying in part on Health and Human Services (HHS) regulations in defining "handicapped individual" within the meaning of the Rehabilitation Act). Notably, the Court has also deferred to agency interpretations of Title IX in cases that involved private (that is, nonstate) recipients of federal funds. See Grove City Coll. v. Bell, 465 U.S. 555, 569, 575 (1984) (crediting the Department of Education's interpretation of the statutory phrase "receiving Federal financial assistance" and holding that the Department of Education "may properly condition federal financial assistance on the recipient's assurance that it will conduct the aided program or activity in accordance with Title IX and the applicable regulations"); Cannon v. Univ. of Chi., 441 U.S. 677, 706-08 (1979) (referring to the Department of HEW's view that a private remedy to enforce Title IX will further the statute's purposes). The same is true in the Rehabilitation Act and Title VI contexts. See Consol. Rail Corp. v. Darrone, 465 U.S. 624, 633-34 (1984) (holding that the Rehabilitation Act entitles a private employee to bring suit even if federal aid received by the employer was not primarily intended to promote employment, and deferring to HEW's regulations because HEW was "the agency responsible for implementing [the] congressional enactment"); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983) (deferring to an agency interpretation of the intent standard under Title VI). Indeed, the Court often has applied Chevron deference to agency interpretations of ambiguous statutory conditions on federal grants in cases involving private grant recipients. See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448 (1998) (Medicare); Rust v. Sullivan, 500 U.S. 173 (1991) (Title X of the Public Health Service Act). If the Court had applied the accountability model, however, then presumably the Court would have been willing to defer only in cases involving private recipients, thus creating conflicting standards depending on the public status of the grant recipient.
134. Cedar Rapids Cmty. Sen. Dist. v. Garret F., 526 U.S. 66, 79, 85 (1999) (Thomas, J., dissenting). In Garret F., the Court held that IDEA "requires a public school district in a participating State to provide a ventilator-dependent student with certain nursing services during school hours." Id. at 68-69, 79.
135. See Arline, 480 U.S. at 291-92 (Rehnquist, C.J., dissenting). In Arline, the Court considered whether a person with a contagious disease can be considered a "handicapped individual" within the meaning of the Act. In concluding that a person with such a disease is protected by the Act, the Court found HHS's regulations, which defined the relevant statutory term, to be "of significant assistance." Id. at 279. The Court distinguished Pennhurst, which considered a statutory provision that merely expressed a "congressional preference," because "our holding is premised on the plain language of the Act, and on the detailed regulations that implement it." Id. at 286 n.15 (emphasis added) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 (1981)). In dissent, Chief Justice Rehnquist argued that the majority had ignored Pennhurst. He based his argument, however, on the fact that "the language of the Act, regulations, and legislative history are silent on this issue." Id. at 291-92 (Rehnquist, C.J., dissenting) (emphasis added). He therefore seemed to concede that explicit regulations could, in a different case, provide states with notice of ambiguous grant conditions.
136. See Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 550-54 (1985).
137. See supra notes 70, 117-120 and accompanying text.
138. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).
139. Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).
140. See id.
141. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
142. Id.
143. 470 U.S. 656 (1985).
144. Id. at 670 (emphasis added).
145. Id.
146. Id. (citation omitted). On the same day that it decided Bennett v. Kentucky Department of Education, the Court held, in Bennett v. New Jersey, 470 U.S. 632, 639-46 (1985), that a 1978 congressional amendment to Title I that increased the states' flexibility to use Title I funds did not govern the Department of Education's audit of New Jersey's misuse of funds granted for 1970-1972. Citing Pennhurst, the Court reasoned that "New Jersey, when it applied for and received Title I funds for the years 1970-1972, had no basis to believe that the propriety of the expenditures would be judged by any standards other than the ones in effect at the time." Id. at 640. The Court noted that "[r]etroactive application of changes in the substantive requirements of a federal grant program would deny both federal auditors and grant recipients fixed, predictable standards for determining if expenditures are proper." Id. The Court did not hold, however, that subsequent legislative enactments categorically cannot apply to prior federal grants; instead, it held that "absent a clear indication to the contrary in the relevant statutes or legislative history, changes in the substantive standards governing federal grant programs do not alter obligations and liabilities arising under earlier grants." Id. at 641. Because the Court concluded that Congress intended the 1978 amendments to apply only prospectively, it held that New Jersey could not rely on them to exonerate its use of funds under an earlier grant.
147. Bennett v. Ky. Dep't of Educ., 470 U.S. at 670 (quoting Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984)). The Fifth Circuit has held that an agency's interpretation cannot retroactively bind a state. In Rosa H. v. San Elizario Independent School District, 106 F.3d 648 (5th Cir. 1997), the court addressed whether Title IX creates liability for a school district that negligently fails to prevent a teacher from sexually harassing a student. The court held that Title IX imposes liability only if the school district had actual knowledge that there was a substantial risk that sexual abuse would occur. In so concluding, the court relied on the fact that Congress enacted Title IX under the Spending Clause, and thus that there should be no liability "unless the recipient of the federal funds agreed to assume the liability." Id. at 654. The court noted that applicable agency regulations "fail to indicate any expectation that school districts will be vicariously liable under Title IX." Id. (citing 34 C.F.R. § 106.2(h) (1996)). The court recognized that the Department of Education had recently issued proposed Title IX guidelines that purported to impose liability when the school has constructive notice of the harassment and fails to remedy the problem, id. at 658 (citing 61 Fed. Reg. 52,173 (Oct. 4, 1996); 61 Fed. Reg. 42,728 (Aug. 16, 1996)), and acknowledged that "when interpreting [T]itle IX we accord the [agency's] interpretations appreciable deference." Id. (quoting Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1015 n.20 (5th Cir. 1996)). The court refused, however, to "apply these guidelines retroactively." Although "the government can add strings to the Title IX funds as it disburses them," it "cannot modify past agreements with recipients by unilaterally issuing guidelines through the Department of Education." Id. The court thus declined to apply the guidelines in Rosa H. and made "no comment on how these guidelines might affect cases in which a school district accepts Title IX funds after the guidelines' promulgation date." Id. As discussed infra notes 179-193 and accompanying text, the Fifth Circuit misapprehended the nature of Title IX. Although Title IX plainly imposes a duty on state recipients of federal funds to refrain from discrimination on the basis of sex "under any education program or activity," 20 U.S.C. § 1681(a) (1994), it is not itself a grant-providing statute. Like Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1994), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1994), Title IX serves as a background condition on the receipt of federal financial assistance distributed through other affirmative grant programs. There is no such thing as "Title IX funds." As I explain below, application of the state choice model creates temporal problems when the issue is the applicability of an obligation imposed by a regulation interpreting such a background condition: In such cases, how should a court determine when the state - which likely receives funds regularly under many federal grant programs - accepted funds?
148. See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991); Mobil Oil Corp. v. EPA, 871 F.2d 149 (D.C. Cir. 1989).
149. See Bennett v. Ky. Dep't of Educ., 470 U.S. at 670.
150. Cf. Pennsylvania v. United States, 781 F.2d 334, 340 (3d Cir. 1986) (applying Chevron deference to uphold a regulation that held states strictly liable for erroneous issuances of benefits under the Food Stamp Program, and rejecting the state's Pennhurst argument because "[s]urely states are familiar with the broad discretion Congress accords to agencies that administer and resolve the ambiguities in complex social welfare programs"); Am. Hosp. Ass'n v. Schweiker, 721 F.2d 170, 183-84 (7th Cir. 1983) (upholding HHS regulations imposing community service obligations on hospitals).
151. Cf. Sunstein, supra note 79, at 336-37 (considering whether Congress has the power explicitly to delegate to an agency authority to address a subject governed by a "nondelegation canon").
152. 488 U.S. 204 (1988).
153. Id. at 208.
154. 511 U.S. 244 (1994).
155. Id. at 265.
156. Bennett v. Ky. Dep't of Educ., 470 U.S. 656, 670 (1985) ("[T]he State agreed to comply with, and its liability is determined by, the legal requirements that were in place when the grants were made.").
157. E.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 647-50 (1999) (noting that certain agency guidelines "were promulgated too late to contribute to the Board's notice of proscribed misconduct").
158. Bennett v. Ky. Dep't of Educ., 470 U.S. at 661-62; Bennett v. New Jersey, 470 U.S. 632, 637 (1985); Bell v. New Jersey, 461 U.S. 773, 777 (1983); Va. Dep't. of Educ. v. Riley, 106 F.3d 559, 560 (4th Cir. 1997).
159. Sch. Bd. v. Arline, 480 U.S. 273, 276 (1987).
160. Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 886 (1984).
161. Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 651 (5th Cir. 1997).
162. A private plaintiff's suit against a state can also involve a reversal of arguments - the plaintiff claims that the state acted inconsistently with some reasonable interpretation of an ambiguous statutory grant condition, and the state argues that deference is appropriate for the agency's interpretation, which favors the state's position. Rehab. Ass'n v. Kozlowski, 42 F.3d 1444, 1448-50 (4th Cir. 1994).
163. Take the example suggested earlier of the federal grant program that requires states to "assure that all public school students have reasonably individualized access to technology education." Imagine that the state receives its appropriation at a time when the Department of Education has not yet offered its view of the condition, and chooses to exhaust the funds by purchasing enough computers to ensure a five-to-one student-to-computer ratio. Imagine further that after the state spends the money, the Department of Education issues a regulation that interprets the condition to require the funds to be spent on salaries for teachers so that the state can maintain a ratio of one science teacher for every ten students. There is little doubt that the state's interpretation of the condition is reasonable, and to bind the state to the agency's (equally reasonable) interpretation could work a financial hardship on the state, which has already spent the federal funds. Although the agency's interpretation is reasonable, Bowen prevents it from binding the state, because the regulation governs the appropriate use of the funds. In contrast, no Bowen problem would arise if the regulation were not in place when the state accepted the funds, but was by the time that the state decided to spend the funds. In that case, the state would have a claim not of Bowen retroactivity, but of Bennett retroactivity.
164. There is, as I discuss infra notes 195-200 and accompanying text, a third possible interpretation - that of a court, which could simply attempt to determine what the "parties" intended at the time that they entered the "contract." Under this approach, the court would not accord Chevron deference but would not automatically resolve the dispute in favor of the state.
165. As noted above, however, Riley did not present such a case. Instead, the agency had announced its interpretation three years before the state implemented its disciplinary policy. Va. Dep't of Educ. v. Riley, 23 F.3d 80, 83 (4th Cir. 1994).
166. Of course, if the state carries out its policy - by, for example, denying a tutor to a disciplined disabled student - the student denied services might, in reliance on the agency interpretation, challenge the state's conduct. If the agency issued its interpretation after the state acted on its policy, then a Bowen problem would arise. But no Bowen retroactivity problem exists if the dispute is merely between the state and the federal government over whether a proposed state policy is permissible under the grant program.
167. Christensen v. Harris County, 120 S. Ct. 1655, 1668 (2000) (Breyer, J., dissenting).
168. Id. at 1667 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944)).
169. See Pennsylvania v. United States, 781 F.2d 334, 340 (3d Cir. 1986) (applying Chevron deference to uphold a regulation that held states strictly liable for erroneous issuances of benefits under the Food Stamp Program and rejecting the state's Pennhurst argument because "[s]urely states are familiar with the broad discretion Congress accords to agencies that administer and resolve the ambiguities in complex social welfare programs"); Am. Hosp. Ass'n v. Schweiker, 721 F.2d 170, 183-84 (7th Cir. 1983) (holding that federal financial assistance applicants "signed a very open-ended 'contract,' one which conferred a great deal of discretion upon the Secretary to define the precise measure of their obligations under it").
170. Linkletter v. Walker, 381 U.S. 618, 622-23 (1965).
171. Id. at 623 (internal quotation marks and citation omitted).
172. E.g., Rust v. Sullivan, 500 U.S. 173 (1991); Mobil Oil Corp. v. EPA, 871 F.2d 149 (D.C. Cir. 1989).
173. See Bennett v. Ky. Dep't of Educ., 470 U.S. 656, 670 (1985).
174. 20 U.S.C. § 1681 (1994).
175. 42 U.S.C. §§ 2000d to 2000d-4 (1994).
176. 29 U.S.C. § 794 (1994).
177. Title IX's prohibition on sex-based discrimination applies only to "education program[s] or activit[ies] receiving Federal financial assistance," 20 U.S.C. § 1681(a), but, like Title VI and the Rehabilitation Act, it is not itself a grant program.
178. Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir. 1997).
179. Id. at 658 (citing 61 Fed. Reg. 52,172 (October 4, 1996)). For Title VII principles, see generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which held that employers are subject to vicarious liability, under certain circumstances, for actions of supervisors.
180. Rosa H., 106 F.3d at 658.
181. See supra notes 153-167 and accompanying text.
182. Rosa H., 106 F.3d at 658 ("The government can add strings to the Title IX funds as it disburses them. But it cannot modify past agreements with recipients by unilaterally issuing guidelines through the Department of Education.").
183. 20 U.S.C. §§ 6302-6338 (1994).
184. 20 U.S.C. §§ 6801-6871 (authorizing the Secretary of Education to distribute federal funds to "support a comprehensive system for the acquisition and use by elementary and secondary schools in the United States of technology and technology-enhanced curricula, instruction, and administrative support resources and services to improve the delivery of educational services").
185. 20 U.S.C. §§ 1411-1420.
186. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999).
187. Id.
188. 20 U.S.C. § 1412(a)(1).
189. Cf. South Dakota v. Dole, 483 U.S. 203, 213-18 (1987) (O'Connor, J., dissenting) (arguing that the Court should insist that conditions on grants of federal funds bear a close relationship to the purpose of the funds); Baker, supra note 11, at 1914 n.11.
190. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6 F.3d 1547, 1561 (Fed. Cir. 1994) (applying Chevron deference to uphold a provision in Federal Acquisition Regulations, which are default terms in government procurement contracts). There is, to be sure, an argument that the common-law interpretive rule of contra proferentem ("against the profferer") would prevent the government from imposing its interpretation of the grant condition on the state recipient. Under that rule, "if language supplied by one party is reasonably susceptible to two interpretations, one of which favors each party, the one that is less favorable to the party that supplied the language is preferred." 2 FARNSWORTH, supra note 195, § 7.11, at 265. The rule, however, is inapposite in the context of federal-state grant programs. First, the doctrine is primarily designed to protect a weaker party against bargaining imbalance, and it has particular application in cases involving adhesion contracts. Although some commentators have argued that federal grants are, in light of resource imbalances, inherently coercive, see supra notes 116-120 and accompanying text, one can hardly argue that grants of federal funds to the states are adhesion contracts. Second, if one takes Garcia at its word, then the states have had, in a sense, some say in the drafting of the "contract," because the federal representatives have taken into account the needs of the states in Grafting the grant scheme. Finally, application of the doctrine to federal-state grant statutes would undermine other values in this context; as explained above, categorical acceptance of the states' interpretations of grant conditions would, in effect, require Congress to legislate at an impossible (and undesirable) level of specificity, and would undermine the values advanced by Chevron.
191. 5 U.S.C. §§ 551-559, 701-706 (1994).
192. Id. § 553(b)(A).
193. Robert A. Anthony, "Interpretive" Rules, "Legislative" Rules and "Spurious" Rules: Lifting the Smog, 8 ADMIN. L.J. AM. U. 1, 13 (1994).
194. Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995) (internal quotation marks and citations omitted).
195. Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 237 (D.C. Cir. 1992).
196. Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 559 (D.C. Cir. 1983).
197. Id. at 558.
198. Id. at 559 (citation omitted); accord Nat'l Family Planning, 979 F.2d at 237.
199. Fertilizer Inst. v. EPA, 935 F.2d 1303, 1307-08 (D.C. Cir. 1991) (citation omitted).
200. Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 588 (D.C. Cir. 1997).
201. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).
202. Id. at 1110.
203. See supra notes 169-172 and accompanying text.
204. Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987).
205. For example; although one hallmark of a substantive rule is that it creates new legal duties, Fertilizer Inst. v. EPA, 935 F.2d 1303, 1307-08 (D.C. Cir. 1991), courts have noted that "interpretive rules may have a substantial impact on the rights of individuals." Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 560 (D.C. Cir. 1983). Similarly, courts generally consider a rule interpretive if it is "explicitly based upon an analysis of the meaning of the statute or regulation." Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 237 (D.C. Cir. 1992). But that almost always is the case, at least in some sense, with legislative rules as well. And the ambiguity is not easily resolved by the principal element in the test that the courts apply to determine whether a rule is interpretive or substantive: "whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties." Am. Mining Cong., 995 F.2d at 1112. That inquiry merely begs the question.
206. See, e.g., Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 93 (D.C. Cir. 1997) ("We have long recognized that it is quite difficult to distinguish between substantive and interpretive rules."); Am. Hosp. Ass'n, 834 F.2d at 1045 (stating that the "spectrum between a clearly interpretive rule and a clearly substantive one is a hazy continuum"); Gen. Motors v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc) (stating that the distinction between legislative and interpretive rules is "enshrouded in considerable smog").
207. TRIBE, supra note 75, at 982.
208. See. e.g., Mistretta v. United States, 488 U.S. 361, 372 (1989) ("So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" (quoting J.W. Hampton, Jr., & Co. v United States 276 U.S. 394, 406 (1928))).
209. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring in the judgment).
210. See id. at 686; TRIBE, supra note 75, at 364-65.
211. Mistretta, 488 U.S. at 372.
212. See, e.g., id. at 416 (Scalia, J., dissenting) ("What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a 'public interest' standard?"); Am. Petroleum Inst., 448 U.S. at 686 (Rehnquist, J., concurring in the judgment) ("We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the nondelegation doctrine has fallen into the same desuetude as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it, 'a case of death by association.'" (quoting JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 133 (1980))); Am. Trucking Ass'ns v. EPA, 195 F.3d 4, 14 (D.C. Cir. 1999) (Silberman, J., dissenting from the denial of rehearing en banc) ("But, sad to say, [Justice Rehnquist's view in American Petroleum Institute] is not shared by a majority of the Court which has acknowledged only a theoretical limitation on the scope of congressional delegations to the executive branch."), rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 121 S. Ct. 903 (2001); JAMES O. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 78-94 (1978).
213. See, e.g., id. at 416 (Scalia, J., dissenting) ("What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a 'public interest' standard?"); Am. Petroleum Inst., 448 U.S. at 686 (Rehnquist, J., concurring in the judgment) ("We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the nondelegation doctrine has fallen into the same desuetude as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it, 'a case of death by association.'" (quoting JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 133 (1980))); Am. Trucking Ass'ns v. EPA, 195 F.3d 4, 14 (D.C. Cir. 1999) (Silberman, J., dissenting from the denial of rehearing en banc) ("But, sad to say, [Justice Rehnquist's view in American Petroleum Institute] is not shared by a majority of the Court which has acknowledged only a theoretical limitation on the scope of congressional delegations to the executive branch."), rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 121 S. Ct. 903 (2001); JAMES O. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 78-94 (1978).