The nondelegation doctrine as a canon of avoidance

Supreme Court Review

Volumn 2000, Issue , 2000, Pages 223-277

  Manning, John F ^a  

^a NONE

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EID: 0345851241     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2000.3109680     Document Type: Article

References (285)

1. See, for example, Mistretta v United States, 488 US 361, 371-72 (1988) ("[W]e long have insisted that 'the integrity and maintenance of the system of government ordained by the Constitution' mandate that Congress generally cannot delegate its legislative power to another Branch.") (quoting Marshall Field & Co. v Clark, 143 US 649, 692 (1892)).
2. See Mistretta, 488 US at 373 n 7 ("In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.").
3. See text accompanying notes 99-105.
4. US Const, Art I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."); see, for example, Loving v United States, 517 US 748, 758 (1996); Touby v United States, 500 US 160, 164-65 (1991).
5. US Const, Art I, § 7 (requiring bicameralism and presentment); see also, for example, Loving, 517 US at 757-58; Cass R. Sunstein, Nondelegation Canons, 67 U Chi L Rev 315, 319-20 (2000).
6. See text accompanying notes 93-95.
7. See text accompanying notes 96-98.
8. 529 US 120 (2000).
9. 52 Stat 1040 (1938), codified as amended, 21 USC § 301 et seq (1994).
10. Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed Reg 44396, 44418, 44655 (1996).
11. Id at 44628-50 (analyzing evidence collected in notice and comment period).
12. 21 USC § 321(g)(1)(C) (1994).
13. See 61 Fed Reg 44396 (cited in note 10); id at 44619 (jurisdictional annex).
14. Brown & Williamson, 529 US at 132-33; see also Chevron USA, Inc. v NRDC, Inc., 467 US 837, 844 (1984).
15. Brown & Williamson, 529 US at 132.
16. Id at 133-43.
17. Id at 137-39.
18. Id at 143-56.
19. Id at 155-56.
20. Id at 143-44.
21. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
22. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
23. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
24. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
25. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
26. The current Court more often stresses the public meaning of an enacted text, rather than inferences of intent or purpose that might be extracted from legislative history. See, for example, Hans Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction, 43 Am J Comp L 319, 324 (1995); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness? 1994 Pub Int L Rev 57, 58; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff L Rev 227, 252-60 (1999). Textualists typically cite several related grounds for excluding legislative history from statutory interpretation: legislative history is unenacted; a multimember legislature does not have any actual intent on matters that it has not clearly expressed; and even if it did, judges cannot know whether a constitutionally sufficient proportion of legislators read or agreed with the legislative history. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussing tenets of textualism).
27. See, for example, Bank American Trust & Sav Ass'n v 203 North Lasalle Street Partnership, 526 US 434 462 (1999) (Thomas, joined by Scalia, concurring in the judgment) (noting that the legislative history "is irrelevant for the simple reason that Congress enacted the Code, not the legislative history predating it"); see also, for example, Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash U L Q 351, 351 (1994); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U Pa L Rev 687, 717 (1998).
28. See, for example, Bank American Trust & Sav Ass'n v 203 North Lasalle Street Partnership, 526 US 434 462 (1999) (Thomas, joined by Scalia, concurring in the judgment) (noting that the legislative history "is irrelevant for the simple reason that Congress enacted the Code, not the legislative history predating it"); see also, for example, Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash U L Q 351, 351 (1994); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U Pa L Rev 687, 717 (1998).
29. See, for example, Atherton v FDIC, 519 US 213, 231 (1997) (O'Connor, joined by Scalia and Thomas, concurring in part and concurring in the judgment) ("I join all of the Court's opinion, except to the extent that it relies on the notably unhelpful legislative history to 12 U.S.C. 1821(k)."); Public Citizen v US Dep't of Justice, 491 US 440, 471 (1989) (Kennedy, joined by Rehnquist and O'Connor, concurring in the judgment) ("Where it is clear that the unambiguous language of a statute embraces certain conduct, and it would not be patently absurd to apply the statute to such conduct, it does not foster a democratic exegesis for this Court to rummage through unauthoritative materials to consult the spirit of the legislation in order to discover an alternative interpretation of the statute with which the Court is more comfortable."); Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 Am U L Rev 277, 306 (1990) (arguing that Justices Scalia and Kennedy are strong textualists and that Chief Justice Rehnquist and Justice O'Connor occasionally behave as textualists). For a contrary view of the jurisprudence of Chief Justice Rehnquist and Justice Kennedy, see Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis L Rev 205, 248.
30. See, for example, Atherton v FDIC, 519 US 213, 231 (1997) (O'Connor, joined by Scalia and Thomas, concurring in part and concurring in the judgment) ("I join all of the Court's opinion, except to the extent that it relies on the notably unhelpful legislative history to 12 U.S.C. 1821(k)."); Public Citizen v US Dep't of Justice, 491 US 440, 471 (1989) (Kennedy, joined by Rehnquist and O'Connor, concurring in the judgment) ("Where it is clear that the unambiguous language of a statute embraces certain conduct, and it would not be patently absurd to apply the statute to such conduct, it does not foster a democratic exegesis for this Court to rummage through unauthoritative materials to consult the spirit of the legislation in order to discover an alternative interpretation of the statute with which the Court is more comfortable."); Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 Am U L Rev 277, 306 (1990) (arguing that Justices Scalia and Kennedy are strong textualists and that Chief Justice Rehnquist and Justice O'Connor occasionally behave as textualists). For a contrary view of the jurisprudence of Chief Justice Rehnquist and Justice Kennedy, see Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis L Rev 205, 248.
31. Viewing Brown & Williamson as a mere departure from standard practice, the Court's strong reliance on legislative history may bear resemblance to Church of the Holy Trinity v United States, 143 US 457, 459 (1892), which held that "a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers." Even if this characterization of the majority opinion is correct, however, it is still necessary to explain why the Court chose to invoke Holy Trinity here, given its increasing reluctance, as of late, to rely on Holy Trinity's atextual and strongly purposive technique. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum L Rev 1, 21-22 (2001) (describing the Court's recent approach to statutory interpretation). As discussed in the text, given the Brown & Williamson Court's repeated articulation of nondelegation concerns, it is reasonable to assume that such concerns - rather than an aberrational abandonment of textualism - explain the Court's approach.
32. Brown & Williamson, 529 US at 159.
33. Id at 133. In this regard, it is worth noting that the Court's nondelegation concerns related to the scope of the administrative authority that the FDCA would confer over the U.S. economy, rather than an absence of standards to guide such authority. Although this is not the paradigmatic basis for invoking the nondelegation doctrine, it nonetheless reflects an important element in the Court's nondelegation case law. See, for example, Industrial Union Department, AFL-CIO v American Petroleum Institute, 448 US 607, 645-46 (1980) (plurality) (noting that serious delegation concerns would be raised if the Occupational Safety and Health Act were construed to give the Secretary of Labor "unprecedented power over American industry"); Wayman v Southard, 23 US 1, 23 (1825) (suggesting that Congress may not delegate authority over "important subjects" but can do so with respect to "those of less interest").
34. Brown & Williamson, 529 US at 133-34; see text accompanying notes 75-78.
35. I do not attempt here to address the question whether tobacco, in fact, falls within the FDCA's definition of a "drug," a matter that others have ably considered. Compare, for example, Richard A. Merrill, The FDA May Not Regulate Tobacco Products as "Drugs" or "Medical Devices," 47 Duke L J 1071 (1998), with Cass R. Sunstein, Is Tobacco a Drug? 47 Duke L J 1013, 1034 (1998). Rather, my objective is merely to supply the context necessary to examine the Court's nondelegation strategy, as well as the limitations of that strategy.
36. I do not attempt here to address the question whether tobacco, in fact, falls within the FDCA's definition of a "drug," a matter that others have ably considered. Compare, for example, Richard A. Merrill, The FDA May Not Regulate Tobacco Products as "Drugs" or "Medical Devices," 47 Duke L J 1071 (1998), with Cass R. Sunstein, Is Tobacco a Drug? 47 Duke L J 1013, 1034 (1998). Rather, my objective is merely to supply the context necessary to examine the Court's nondelegation strategy, as well as the limitations of that strategy.
37. 21 USC § 321(g)(1)(C) (1994).
38. See, for example, Action on Smoking & Health v Harris, 655 F2d 236 (DC Cir 1980) (affirming FDA's denial of petition to assert jurisdiction over tobacco); U.S. v 354 Bulk Canons * * * Trim Reducing-Aid Cigarettes, 178 F Supp 847 (DNJ 1959) (sustaining FDA jurisdiction where cigarettes were marketed as weight reduction aids); U.S. v 46 Cartons, More or Less, Containing Fairfax Cigarettes, 113 F Supp 336 (DNJ 1953) (asserting jurisdiction where a particular brand was marketed as effective for reducing respiratory and other ailments).
39. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products to Protect Children and Adolescents, 60 Fed Reg 41314, 41341 (1995) (notice of proposed rulemaking).
40. 61 Fed Reg at 44664-85 (cited in note 10).
41. Id at 44686-45204.
42. Id at 44651.
43. Id at 44631-32.
44. Id at 44665.
45. Id at 44673.
46. See id at 44634-35, 44698-744.
47. See id at 44633: When Congress enacted the current definition of "drug" in 1938, it was well understood that "[t]he law presumes that every man intends the legitimate consequences of his own acts." Agnew v United States, 165 U.S. 36, 53 (1897). Consistent with this common understanding, FDA's regulations provide that a product's intended pharmacological use may be established by evidence that the manufacturer "knows, or has knowledge of facts that would give him notice," that the product is being widely used for a pharmacological purpose, even if the product is not being promoted for this purpose. 21 CFR 201.128, 801.4. Thus, FDA may find that a manufacturer intends its product to affect the structure or function of the body when it would be foreseeable to a reasonable manufacturer that the product will (1) affect the structure or function of the body and (2) be used by a substantial proportion of consumers to obtain these effects.
48. Id at 44636; see also id at 44635-36, 44807-46. For example, the agency cited major recent studies concluding "that 77% to 92% of smokers are addicted to nicotine in cigarettes." Id at 44635. Other surveys, moreover, found that "over 70% of young people 10 to 22 years old who are daily smokers reported that they use cigarettes for relaxation," and "that between one-third and one-half of young smokers report that weight control is a reason for their smoking." Id at 44636.
49. See id at 44847-45097. Specifically, the agency relied on evidence that manufacturers "have known for decades" that nicotine has significant pharmacological effects and that "consumers use cigarettes primarily to obtain the pharmacological effects of nicotine, including the satisfaction of their addition." Id at 44849. It also cited evidence that the manufacturers "have 'designed' cigarettes to provide pharmacologically active doses of nicotine to consumers," in part by conducting "extensive product research and development to establish the dose of nicotine necessary to produce pharmacological effects and to optimize the delivery of nicotine to consumers." Id at 44850. The agency found similar evidence for smokeless tobacco products. See id at 44643.
50. See id at 44851 & n 413 (citing The American Heritage Dictionary of the English Language 668 (Houghton Mifflin, 1991) (defining "intend" to include "1. To have in mind; plan. 2.a. To design for a specific purpose, b. To have in mind for a particular use . . . .")).
51. Id at 44397. The Act defines a "device," in relevant part, as "an instrument, apparatus, implement, machine, contrivance, . . . or other similar or related article, . . . which is . . . intended to affect the structure or any function of the body." 21 USC § 321(h) (1994). More precisely, the FDA determined that cigarettes and smokeless tobacco were "combination products," which the Act defines as a "combination of a drug, device, or biologic product." 21 USC § 353(g)(1) (1994). The agency concluded, however, that it could regulate combination products as drugs, devices, or both, depending on "how the public health goals of the act can be best accomplished." 61 Fed Reg at 44403 (cited in note 10). Because of the greater flexibility of the FDCA's provisions governing devices, the FDA chose to regulate cigarettes and smokeless tobacco as "devices." Brown & Williamson, 529 US at 129.
52. 21 USC § 360j(e) (1994).
53. 61 Fed Reg at 44398 (cited in note 10).
54. Id at 44398-99.
55. Id at 44615-18.
56. Id at 44616-17.
57. For example, the regulations required advertisements to appear in black-and-white and text-only formats, except in adult-only publications and facilities. See id at 44617. In addition, they banned outdoor advertising within 1,000 feet of schools and playgrounds, the distribution of various promotional products bearing a tobacco brand name or logo, and sponsorship in the tobacco company's name of any "athletic, musical, artistic, or other social or cultural event." Id at 44617-18.
58. Id at 44407.
59. See Chevron USA, Inc. v NRDC, Inc., 467 US 837 (1984).
60. Id at 842.
61. Id at 842-43.
62. Id at 843-44.
63. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395, 436-37 (1995); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 97 Colum L Rev 612, 625 (1996).
64. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395, 436-37 (1995); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 97 Colum L Rev 612, 625 (1996).
65. See Chevron, 467 US at 865-66: Judges . . . are not part of either political branch of the Government. . . . While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make . . . policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
66. See, for example, Babbitt v Sweet Home Chapter of Communities for a Greater Oregon, 515 US 687, 707 (1991) ("When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his."); Norfolk & Western Ry Co. v American Train Dispatchers' Ass'n, 491 US 117, 218 (1991) (noting that Chevron deference is warranted where the statutory language is "clear, broad, and unqualified").
67. The meaning of the term "intended" represented the only serious interpretive question. The evidence, however, clearly showed the tobacco companies' knowledge of nicotine's physical effects, and the law traditionally presumes that persons intend the natural and probable consequences of their acts. Although the agency had changed its interpretation of "intent" in promulgating its recent regulations, Chevron makes clear that such changes are permissible in cases of ambiguity, provided that the agency has adequately explained its change of position. See Smiley v Citibank (South Dakota), NA, 517 US 735, 742 (1996); Chevron, 467 US at 863. In addition, although the tobacco manufacturers argued that "intent," as used in the FDCA, was a term of art requiring companies to make express representations of therapeutic effect, see, for example, Brief of Respondent Brown & Williamson Tobacco Corp. 6-28, FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000), the Court did not rely on or even address that premise in determining the scope of the FDCA.
68. See, for example, Clark Byse, Judicial Review of Administrative Interpretation of Statutes: An Analysis of Chevron's Step Two, 2 Admin L J 255 (1988); Peter L. Strauss, When the Judge Is Not the Primary Official with the Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi Kent L Rev 321 (1990); Cass R. Sunstein, Law and Administration After Chevron 90 Colum L Rev 2071 (1990).
69. See, for example, Clark Byse, Judicial Review of Administrative Interpretation of Statutes: An Analysis of Chevron's Step Two, 2 Admin L J 255 (1988); Peter L. Strauss, When the Judge Is Not the Primary Official with the Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi Kent L Rev 321 (1990); Cass R. Sunstein, Law and Administration After Chevron 90 Colum L Rev 2071 (1990).
70. See, for example, Clark Byse, Judicial Review of Administrative Interpretation of Statutes: An Analysis of Chevron's Step Two, 2 Admin L J 255 (1988); Peter L. Strauss, When the Judge Is Not the Primary Official with the Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi Kent L Rev 321 (1990); Cass R. Sunstein, Law and Administration After Chevron 90 Colum L Rev 2071 (1990).
71. See, for example, National R. Passenger Corp. v Boston & Maine Corp., 503 US 407, 417 (1993) ("If the agency interpretation is not in conflict with the plain language of the statute, deference is due. In ascertaining whether the agency's interpretation is a permissible construction of the language, a court must look to the structure and language of the statute as a whole.") (citation omitted); K-Mart Corp. v Cartier, Inc., 486 US 281, 292 (1987) ("If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute.").
72. Brown & Williamson, 529 US at 132.
73. In brief, the Court reasoned that the FDA's mission is to ensure that regulated products are "'safe' and 'effective.'" Id at 133 (quoting 21 USC § 393(b)(2) (1994)). That objective, the Court explained, "pervades the FDCA" and is central to the very provision on which the agency based its tobacco regulations. Id; see id at 134 ("Even the 'restricted device' provision pursuant to which the FDA promulgated the regulations at issue here authorizes the agency to place conditions on the sale or distribution of a device specifically when 'there cannot otherwise be reasonable assurance of its safety and effectiveness.'") (quoting 21 USC § 360j(e) (1994)). The Court also relied on the FDCA's provisions governing misbranded drugs. Because tobacco would be "'dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof,'" the Court found that they would be "misbranded" within the meaning of the Act. Id at 135 (quoting 21 USC § 352(j) (1994)). Tobacco would also be misbranded because the tobacco companies would not be able to provide "'adequate directions for use . . . in such manner and form, as are necessary for the protection of users.'" Id (quoting 21 USC § 352(f)(1) (1994)). Finally, the Court concluded that the FDA would have to classify cigarettes and smokeless tobacco in a category that would require premarketing approval. See id at 136; see also 21 USC § 360(a) (1994); id § 360c(a)(1)(C) (1994); id § 360e (1994). In that context, the agency would have to deny approval, absent "'reasonable assurance that such device is safe under the conditions of use prescribed, recommended or suggested on the labeling thereof.'" Brown & Williamson, 529 US at 136 (quoting 21 USC § 360e(d)(2)(A) (1994)). The dissent argued that the statute gives the FDA greater discretion than the Court suggested. See id at 173-79 (Breyer dissenting). In addition, the FDA had specifically concluded that a total ban would not promote the Act's objectives; specifically, it would produce adverse net health effects by producing severe withdrawal symptoms and creating a black market for potentially more dangerous tobacco products. 60 Fed Reg at 44398, 44405, 44413 (cited in note 31). Based on those findings, the dissent concluded that the FDA had authority to forgo a complete ban based on statutory authority to consider comparative health effects in crafting its regulations. See Brown & Williamson, 529 US at 177 (Breyer dissenting) ("[S]urely the agency can determine that a product is comparatively 'safe' (not 'dangerous') whenever it would be less dangerous to make the product available (subject to regulatory requirements) than suddenly to withdraw it from the market. . . . Indeed, the FDA already seems to have taken this position when permitting distribution of toxic drugs, such as poisons used for chemotherapy, that are dangerous for the user but are not deemed 'dangerous to health' in the relevant sense."). For purposes of analyzing the Court's interpretative method, it is unnecessary to consider whether it correctly determined this precise point. More important are the implications that the Court drew from that conclusion.
74. Brown & Williamson, 529 US at 143.
75. See Federal Cigarette Labeling and Advertising Act, Pub L No 89-92, 79 Stat 282 (1965); Public Health Cigarette Smoking Act of 1969, Pub L No 91-222, 84 Stat 87; Alcohol and Drug Abuse Amendments of 1983, Pub L No 98-24, 97 Stat 175; Comprehensive Smoking Education Act, Pub L No 98-474, 98 Stat 2200 (1984); Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub L No 99-252, 100 Stat 30; Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, Pub L No 102-321, § 202, 106 Stat 394 (1992).
76. Brown & Williamson, 529 US at 138.
77. Id at 139 (quoting 15 USC § 1331 (1994)).
78. Id at 144.
79. Pub L No 89-92, 79 Stat 282.
80. Id § 4, 79 Stat 283.
81. See Brown & Williamson, 529 US at 144-46; see also HR 2248, 89th Cong, 1st Sess, 1 (1965); HR 9512, 88th Cong, 1st Sess, § 3 (1963); HR 5973, 88th Cong, 1st Sess 1 (1963); S 1682, 88th Cong, 1st Sess (1963).
82. Brown & Williamson, 529 US at 149.
83. Id at 144.
84. Id (internal quotation marks omitted) (quoting United States v Fausto, 484 US 439, 453 (1988)).
85. Id at 143-44.
86. Id at 159.
87. Id.
88. Id at 160.
89. Id.
90. Mistretta v United States, 488 US 361, 374 n 7 (1989).
91. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
92. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
93. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
94. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
95. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
96. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
97. For varying perspectives, see, for example, Kenneth Culp Davis, Discretionary Justice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaranson et al, A Theory of Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa Schultz Bressman, Scherter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399 (2000); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 Am U L Rev 419 (1987).
98. See, for example, Mistretta, 488 US at 371-72 ("[W]e long have insisted that 'the integrity and maintenance of the system of government ordained by the Constitution' mandate that Congress generally cannot delegate its legislative power to another Branch.") (quoting Marshall Field & Co. v Clark, 143 US 649, 692 (1892)).
99. US Const, Art I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."); see, for example, Loving v United States, 517 US 748, 758 (1996) ("The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U.S. Const., Art. I, § 1, and may not be conveyed to another branch or entity."); Touby v United States, 500 US 160, 164-65 (1991) ("The Constitution provides that '[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.' U.S. Const., Art. I, § 1. From this language the Court has derived the non-delegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government."); Mistretta, 488 US at 371 ("The nondelegation doctrine is rooted in the principle of separation of powers that underlies our system of government.").
100. Loving, 517 US at 757-58 ("Article I's precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and deliberative lawmaking.").
101. US Const, Art I, § 7.
102. See, for example, INS v Chadha, 462 US 919, 951 (1983) (noting that bicameralism addressed the "fear that special interests could be favored at the expense of public needs"); Federalist 62 (Madison) in Clinton Rossiter, ed, The Federalist Papers 378-79 (Mentor, 1961) ("[A] senate, as a second branch of the legislative assembly, distinct from and dividing power with the first, . . . doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient."); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that the veto "establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body"); Joseph Story, Commentaries on the Constitution of the United States § 882, at 348 (Boston, Hillard, Gray, 1833) ("[T]he [veto] power . . . establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility.") (citation omitted); see also Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 NYU L Rev 1239, 1249 (1989) ("The Framers created two antidotes to factionalism in Congress: bicameralism and presentment. Bicameralism forces a potential faction to capture both Houses of Congress simultaneously. Presentment gives the president - the politically accountable entity least susceptible to capture by factions - voice in the legislative process.").
103. See, for example, INS v Chadha, 462 US 919, 951 (1983) (noting that bicameralism addressed the "fear that special interests could be favored at the expense of public needs"); Federalist 62 (Madison) in Clinton Rossiter, ed, The Federalist Papers 378-79 (Mentor, 1961) ("[A] senate, as a second branch of the legislative assembly, distinct from and dividing power with the first, . . . doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient."); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that the veto "establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body"); Joseph Story, Commentaries on the Constitution of the United States § 882, at 348 (Boston, Hillard, Gray, 1833) ("[T]he [veto] power . . . establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility.") (citation omitted); see also Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 NYU L Rev 1239, 1249 (1989) ("The Framers created two antidotes to factionalism in Congress: bicameralism and presentment. Bicameralism forces a potential faction to capture both Houses of Congress simultaneously. Presentment gives the president - the politically accountable entity least susceptible to capture by factions - voice in the legislative process.").
104. See, for example, INS v Chadha, 462 US 919, 951 (1983) (noting that bicameralism addressed the "fear that special interests could be favored at the expense of public needs"); Federalist 62 (Madison) in Clinton Rossiter, ed, The Federalist Papers 378-79 (Mentor, 1961) ("[A] senate, as a second branch of the legislative assembly, distinct from and dividing power with the first, . . . doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient."); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that the veto "establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body"); Joseph Story, Commentaries on the Constitution of the United States § 882, at 348 (Boston, Hillard, Gray, 1833) ("[T]he [veto] power . . . establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility.") (citation omitted); see also Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 NYU L Rev 1239, 1249 (1989) ("The Framers created two antidotes to factionalism in Congress: bicameralism and presentment. Bicameralism forces a potential faction to capture both Houses of Congress simultaneously. Presentment gives the president - the politically accountable entity least susceptible to capture by factions - voice in the legislative process.").
105. See, for example, INS v Chadha, 462 US 919, 951 (1983) (noting that bicameralism addressed the "fear that special interests could be favored at the expense of public needs"); Federalist 62 (Madison) in Clinton Rossiter, ed, The Federalist Papers 378-79 (Mentor, 1961) ("[A] senate, as a second branch of the legislative assembly, distinct from and dividing power with the first, . . . doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient."); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that the veto "establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body"); Joseph Story, Commentaries on the Constitution of the United States § 882, at 348 (Boston, Hillard, Gray, 1833) ("[T]he [veto] power . . . establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility.") (citation omitted); see also Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 NYU L Rev 1239, 1249 (1989) ("The Framers created two antidotes to factionalism in Congress: bicameralism and presentment. Bicameralism forces a potential faction to capture both Houses of Congress simultaneously. Presentment gives the president - the politically accountable entity least susceptible to capture by factions - voice in the legislative process.").
106. Chadha, 461 US at 951 ("The division of the Congress into two bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings."); The Pocket Veto Cases, 279 US 655, 678 (1929) (arguing that it is an "essential . . . part of the constitutional provisions, guarding against ill-considered and unwise legislation, that the President, on his part, should have the full time allowed him for determining whether he should approve or disapprove a bill, and if disapproved, for adequately formulating the objections that should be considered by Congress"). The calming influence of bicameralism is nicely captured in an analogy attributed to George Washington: There is a tradition that, on his return from France, Jefferson called Washington to account at the breakfast-table for having agreed to a second chamber. 'Why,' asked Washington, 'did you pour that coffee into your saucer?' 'To cool it,' quoth Jefferson. 'Even so,' said Washington, 'we pour legislation into the senatorial saucer to cool it.' Max Farrand, ed, 3 The Records of the Federal Convention of 1787, at 21 (Yale Univ Press, rev ed 1966).
107. See, for example, Garcia v San Antonio Metropolitan Transit Authority, 469 US 528, 551-52 (1985) (discussing the Senate's essential role in protecting interests of states); Manning, 101 Colum L Rev at 75-77 (cited in note 24); Sunstein, 67 U Chi L Rev at 319 (cited in note 5).
108. See, for example, Garcia v San Antonio Metropolitan Transit Authority, 469 US 528, 551- 52 (1985) (discussing the Senate's essential role in protecting interests of states); Manning, 101 Colum L Rev at 75-77 (cited in note 24); Sunstein, 67 U Chi L Rev at 319 (cited in note 5).
109. The bias in favor of blocking legislation did not go unnoticed during the debates over the Constitution's adoption. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (cited in note 85) (acknowledging that "this complicated check on legislation may in some instances be injurious as well as beneficial"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that "the power of preventing bad laws includes that of preventing good ones"). And both the costs and benefits associated with a burdensome legislative process were frankly acknowledged in these debates. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (arguing that "the facility and excess of law-making seem to be the diseases to which our governments are most liable"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 ("The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.").
110. The bias in favor of blocking legislation did not go unnoticed during the debates over the Constitution's adoption. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (cited in note 85) (acknowledging that "this complicated check on legislation may in some instances be injurious as well as beneficial"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that "the power of preventing bad laws includes that of preventing good ones"). And both the costs and benefits associated with a burdensome legislative process were frankly acknowledged in these debates. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (arguing that "the facility and excess of law-making seem to be the diseases to which our governments are most liable"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 ("The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.").
111. The bias in favor of blocking legislation did not go unnoticed during the debates over the Constitution's adoption. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (cited in note 85) (acknowledging that "this complicated check on legislation may in some instances be injurious as well as beneficial"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that "the power of preventing bad laws includes that of preventing good ones"). And both the costs and benefits associated with a burdensome legislative process were frankly acknowledged in these debates. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (arguing that "the facility and excess of law-making seem to be the diseases to which our governments are most liable"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 ("The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.").
112. The bias in favor of blocking legislation did not go unnoticed during the debates over the Constitution's adoption. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (cited in note 85) (acknowledging that "this complicated check on legislation may in some instances be injurious as well as beneficial"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 (noting that "the power of preventing bad laws includes that of preventing good ones"). And both the costs and benefits associated with a burdensome legislative process were frankly acknowledged in these debates. See, for example, Federalist 62 (Madison) in Rossiter, ed, The Federalist Papers at 378 (arguing that "the facility and excess of law-making seem to be the diseases to which our governments are most liable"); Federalist 73 (Hamilton) in Rossiter, ed, The Federalist Papers at 443 ("The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.").
113. The Court only twice invalidated statutes on nondelegation grounds. ALA Schechter Poultry Corp. v United States, 295 US 495 (1935); Panama Refining Co. v Ryan, 293 US 388 (1935).
114. J.W. Hampton, Jr., & Co. v United States, 276 US 394, 409 (1928) (articulating the "intelligible principle" test). The Court apparently believes that when a statute sets down an intelligible principle, the agency can be thought of as implementing legislative directions, rather than exercising legislative authority. See, for example, Loving, 517 US at 770 ("The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes."); Yakus v United States, 321 US 414, 426 (1944) ("Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose."); Marshall Field & Co., 143 US at 694 ("'The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.'") (quoting Cincinnati, Wilmington & Zanesville R. Co. v Commissioners, 1 Ohio St 77, 88-89 (1852)). Under that view, the agency is engaged in law "execution," rather than receiving delegated legislative authority. See Loving, 517 US at 777 (Scalia concurring in part and concurring in the judgment) ("What Congress does is to assign responsibilities to the Executive; and when the Executive undertakes those assigned responsibilities it acts, not as the 'delegate' of Congress, but as the agent of the People. At some point the responsibilities assigned can become so extensive and so unconstrained that Congress has in effect delegated its legislative power; but until that point of excess is reached there exists, not a 'lawful' delegation, but no delegation at all.").
115. See, for example, Lichter v United States, 334 US 742, 785-86 (1948) (sustaining agency authority to recoup "excessive profits" on war contracts); American Power & Light Co. v SEC, 329 US 90, 105 (1946) (SEC may reject corporate reorganizations that are not "fair and equitable"); NBC v United States, 319 US 190, 225-26 (1943) (Congress may grant FCC power to allocate broadcasting licenses in "the public interest, convenience, and necessity").
116. See Richard B. Stewart, Beyond Delegation Doctrine, 36 Am U L Rev 323, 324 (1987) (discussing reasons for nonenforcement of the nondelegation doctrine).
117. See, for example, United States v Shreveport Grain & Elevator Co., 277 US 77, 85 (1932) (approving "directions to those charged with the administration of the act to make supplementary rules and regulations allowing reasonable variations, tolerances, and exemptions, which, because of their variety and need of detailed statement, it was impracticable for Congress to prescribe"); Union Bridge Co. v United States, 204 US 364, 387 (1907) ("[I]t is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be 'to stop the wheels of government' and bring about confusion, if not paralysis, in the conduct of the public business.").
118. J.W. Hampton, Jr. & Co., 276 US at 406.
119. Mistretta, 488 US at 372; see also, for example, American Power & Light Co., 329 US at 105 ("The judicial approval accorded these 'broad' standards for administrative action is a reflection of the necessities of modern legislation in dealing with complex economic and social problems."); Sunshine Anthracite Coal Co. v Adkins, 310 US 381, 398 (1940) ("Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.").
120. See Mistretta, 488 US at 415 (Scalia dissenting) (arguing "that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it"). The inevitability of interpretive discretion is not a new idea. See, for example, 1 William Blackstone, Commentaries on the Laws of England *61 (noting that "in laws all cases cannot be foreseen and expressed"); Federalist 37 (Madison) in Rossiter, ed, The Federalist Papers at 229 (cited in note 85) ("[I]t must happen that however accurately the objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.").
121. As Chief Justice Marshall once put it: The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily. Wayman v Southard, 23 US 1, 46 (1825). For further discussion of this point, see, for example, Manning, 97 Colum L Rev at 727 (cited in note 21); Sunstein, 67 U Chi L Rev at 326-28 (cited in note 5).
122. As Chief Justice Marshall once put it: The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily. Wayman v Southard, 23 US 1, 46 (1825). For further discussion of this point, see, for example, Manning, 97 Colum L Rev at 727 (cited in note 21); Sunstein, 67 U Chi L Rev at 326-28 (cited in note 5).
123. Mistretta, 488 US at 415 (Scalia dissenting); see also FPC v New England Power Co., 415 US 345, 352-54 (1974) (Marshall concurring) (noting that the Court has "virtually abandoned" nondelegation doctrine); Sunstein, 67 U Chi L Rev at 326-28 (cited in note 5). The Court itself recently suggested that courts cannot successfully draw the line between lawmaking and law implementation: The Government's distinction between "making" law and merely "enforcing" it, between "policymaking" and mere "implementation," is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes. This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. Printz v United States, 521 US 898, 927 (1997) (citations omitted).
124. For a description of this practice, see Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 470 (1989).
125. I would distinguish this practice from cases in which the Court simply concludes that the text of an administrative statute, understood in context, has a specialized connotation that is narrower than the everyday meaning of the terms. For instance, sometimes a statutory phrase seems exceedingly broad on its face, but draws refinement from established traditions or practices associated with the phrase or subject in question. See, for example, Fabey v Mallonee, 332 US 245, 250 (1947) (reading authority to promulgate regulations for appointing conservators for savings and loan associations in light of "well-defined practices for the appointment of conservators"); American Power & Light Co., 329 US at 104 (statute prohibiting police corporate practices that "unduly or unnecessarily complicate the structure" of a public utility or "unfairly or inequitably distribute voting power among [its] security holders" are intelligible to those "familiar with corporate realities"); Federal Radio Comm'n v Nelson Bros Bond & Mortgage Co., 289 US 266, 285 (1933) (narrowing "public convenience, interest or necessity" in light of "its context [and] the nature of radio transmission and reception"). Often, this strategy involves the conventional idea that when Congress uses a term of art, "it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken." Morrissette v United States, 342 US 246, 263 (1952). And such cases simply reflect the reality that statutes must be interpreted in context. See Deal v United States, 508 US 129, 132 (1993) (applying the "fundamental principle of statutory construction . . . that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used"). Such decisions do not involve the alteration of statutory meaning to avoid a serious question under the nondelegation doctrine.
126. Paul Gewirtz, The Courts, Congress, and Executive Policy-Making: Notes an Three Doctrines, 40 L & Contemp Probs, Summer 1976, at 46, 72.
127. Id.
128. See, for example, Jean v Nelson, 472 US 846, 854 (1985); NLRB v Catholic Bishop, 440 US 490, 499-501 (1979); Int'l Ass'n of Machinists v Street, 367 US 740, 749 (1961). Professor Sunstein has suggested that, in general, applying the canon of avoidance to administrative statutes serves a special set of nondelegation interests; it compels Congress to speak explicitly when it wishes to push against constitutional boundaries. See Sunstein, 67 U Chi L Rev at 331-32 (cited in note 5). This paper does not address that broad claim as it relates to the avoidance of constitutional questions arising under provisions such as the First Amendment, which do not speak directly to the legislative process prescribed by Article I. Rather, it considers only those cases in which the Court invokes the avoidance canon to vindicate nondelegation concerns as such.
129. Gewirtz, 40 L & Contemp Probs at 73-75 (cited in note 101).
130. See, for example, Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv L Rev 1669, 1697 (1975); Cass R. Sunstein, 103 Harv L Rev at 470 (cited in note 99).
131. See, for example, Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv L Rev 1669, 1697 (1975); Cass R. Sunstein, 103 Harv L Rev at 470 (cited in note 99).
132. 448 US 607 (1980).
133. 29 USC § 655(b)(5).
134. Id.
135. American Petroleum Institute, 448 US at 637.
136. Id at 675 (Rehnquist concurring in the judgment).
137. Id at 642-46 (plurality opinion).
138. Id at 645.
139. 29 USC § 652(8).
140. American Petroleum Institute, 448 US at 642 (plurality opinion).
141. Id at 642-43.
142. Id at 646-52.
143. See, for example, Jerry L. Mashaw, As If Republican Interpretation, 97 Yale L J 1685, 1691 (1989) ("One common understanding of the Supreme Court's judgment in that case . . . is that the Court rewrote the Occupational Safety and Health Act in order to avoid affirming what it perceived to be an unreasonably costly health regulation."); Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L J 1487, 1507 (1992) (noting that courts "may strike their own balance, declaring it the legislature's true intent," and that the Benzene plurality "read a requirement of 'significant risk' into the statute"); Richard B. Stewart, Regulatory Jurisprudence: Canons Redux, 79 Calif L Rev 807, 817-18 (1991) (noting the oddity of precluding an agency "from regulating a risk a court might deem not 'significant' - where the statute does not contain any requirement of 'significance' and, indeed, where it provides that toxic substance standards must ensure 'to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity'") (book review of Cass R. Sunstein, After the Rights Revolution (Harvard Univ Press, 1990)).
144. See, for example, Jerry L. Mashaw, As If Republican Interpretation, 97 Yale L J 1685, 1691 (1989) ("One common understanding of the Supreme Court's judgment in that case . . . is that the Court rewrote the Occupational Safety and Health Act in order to avoid affirming what it perceived to be an unreasonably costly health regulation."); Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L J 1487, 1507 (1992) (noting that courts "may strike their own balance, declaring it the legislature's true intent," and that the Benzene plurality "read a requirement of 'significant risk' into the statute"); Richard B. Stewart, Regulatory Jurisprudence: Canons Redux, 79 Calif L Rev 807, 817-18 (1991) (noting the oddity of precluding an agency "from regulating a risk a court might deem not 'significant' - where the statute does not contain any requirement of 'significance' and, indeed, where it provides that toxic substance standards must ensure 'to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity'") (book review of Cass R. Sunstein, After the Rights Revolution (Harvard Univ Press, 1990)).
145. See, for example, Jerry L. Mashaw, As If Republican Interpretation, 97 Yale L J 1685, 1691 (1989) ("One common understanding of the Supreme Court's judgment in that case . . . is that the Court rewrote the Occupational Safety and Health Act in order to avoid affirming what it perceived to be an unreasonably costly health regulation."); Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L J 1487, 1507 (1992) (noting that courts "may strike their own balance, declaring it the legislature's true intent," and that the Benzene plurality "read a requirement of 'significant risk' into the statute"); Richard B. Stewart, Regulatory Jurisprudence: Canons Redux, 79 Calif L Rev 807, 817-18 (1991) (noting the oddity of precluding an agency "from regulating a risk a court might deem not 'significant' - where the statute does not contain any requirement of 'significance' and, indeed, where it provides that toxic substance standards must ensure 'to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity'") (book review of Cass R. Sunstein, After the Rights Revolution (Harvard Univ Press, 1990)).
146. See, for example, Jerry L. Mashaw, As If Republican Interpretation, 97 Yale L J 1685, 1691 (1989) ("One common understanding of the Supreme Court's judgment in that case . . . is that the Court rewrote the Occupational Safety and Health Act in order to avoid affirming what it perceived to be an unreasonably costly health regulation."); Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L J 1487, 1507 (1992) (noting that courts "may strike their own balance, declaring it the legislature's true intent," and that the Benzene plurality "read a requirement of 'significant risk' into the statute"); Richard B. Stewart, Regulatory Jurisprudence: Canons Redux, 79 Calif L Rev 807, 817-18 (1991) (noting the oddity of precluding an agency "from regulating a risk a court might deem not 'significant' - where the statute does not contain any requirement of 'significance' and, indeed, where it provides that toxic substance standards must ensure 'to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity'") (book review of Cass R. Sunstein, After the Rights Revolution (Harvard Univ Press, 1990)).
147. As Justice Marshall's dissenting opinion put it: The plurality's interpretation renders utterly superfluous the first sentence of § 655(b)(5), which . . . requires the Secretary to set the standard "which most adequately assures . . . that no employee suffer material impairment of health." . . . By so doing, the plurality makes the text for standards regulating toxic substances and harmful physical agents substantially identical to the test for standards generally - plainly the opposite of what Congress intended. And it is an odd canon of construction that would insert in a vague and general definitional clause a threshold requirement that overcomes the specific language placed in a standard-setting provision. American Petroleum Institute, 448 US at 709 (Marshall dissenting).
148. See American Petroleum Institute, 448 US at 676-82 (Rehnquist concurring in the judgment) (arguing that the "somewhat cryptic legislative history" does not impose a significant risk requirement or impose meaningful limits on the "feasibility" requirement); id at 710-11 (Marshall dissenting) (arguing that the plurality relied on "isolated statements in the legislative history," which in context do not support the requirement of a threshold finding of significant risk).
149. Id at 646 (plurality) (citation omitted).
150. See Mistretta, 488 US at 374 n 7. For other applications of this approach, see, for example, National Cable Television Ass'n v FCC, 415 US 336, 341-42 (1974) (reading the Independent Offices Appropriations Act "narrowly to avoid constitutional problems" raised by agency's open-ended authority to impose "fees" on regulated parties; holding that "fee" must reflect benefit to regulated party); FPC v New England Power Co., 415 US 345 (same); National Ass'n of Broadcasters v Copyright Royalty Tribunal, 675 F2d 367, 376 n 12 (DC Cir 1982) (finding an intelligible principle to guide the tribunal in disbursing cable royalty fees in "specific statements in the legislative history and in the general philosophy of the Act itself").
151. 143 US 457 (1892); see also, for example, California Federal Savs & Loan Ass'n v Guerra, 479 US 272, 284 (1987); United Steelworkers v Weber, 443 US 193, 202 (1979); Train v Colorado Public Interest Research Group, 426 US 1, 10 (1976).
152. I have discussed Holy Trinity's foundations in greater detail elsewhere. See Manning, 101 Colum L Rev at 10-15 (cited in note 24).
153. In Holy Trinity, for example, Congress had broadly prohibited the importation of "labor or service of any kind." See Alien Contract Labor Act of 1885, ch 164, § 1, 23 Stat 332, 332. But the title of the act, its legislative history, and the circumstances surrounding its enactment suggested that Congress had done so for the apparent purpose of preventing "the influx of this cheap, unskilled labor." Holy Trinity, 143 US at 465. In light of this background purpose, the Court felt justified in clipping back the Act's broad prohibition to exclude professionals ("brain toilers") from its sweep. Id at 464; see also id at 459 (noting that judicial efforts to conform a broad text to its purpose are "not the substitution of the will of the judge for that of the legislator").
154. Public Citizen v U.S. Dep't of Justice, 491 US 440, 466 (1989).
155. Public choice theory is of course a branch of political science that uses the insights of economics and game theory to analyze the processes of governmental decision making. See Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction 21-33, 47-62 (Univ of Chicago Press, 1990).
156. As discussed below, this challenge bears directly on the legitimacy of narrowing administrative statutes to avoid nondelegation concerns. See text accompanying notes 136-46.
157. Because Judge Easterbrook has been the most consistent exponent of this position, much of the following discussion is drawn from his writings.
158. Specifically, interest-group theory suggests that interest groups purchase legislation through "campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes." William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J L & Econ 875, 877 (1975).
159. See, for example, Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv L Rev 4, 46 (1984) (noting that in such instances, "[w]hat Congress wanted was the compromise, not the objectives of the contending interests"). For helpful descriptions of the public choice critique of strong purposivism, see William N. Eskridge, Jr. and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 335 (1990) (explaining public choice theory's contention "when a court uses purposivist analysis to elaborate a statute, it may actually undo a deliberate and precisely calculated deal worked out in the legislative process"); Philip P. Frickey, From the Big Heat to the Big Sleep: The Revival of Theory in Statutory Interpretation, 77 Minn L Rev 241, 251 (1992) (discussing the claim that judges could "reach the wrong results" by "promoting a public policy purpose gleaned from the statute rather than following the true lines of legislative compromise"); Manning, 101 Colum L Rev at 18 (cited in note 24).
160. See, for example, Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv L Rev 4, 46 (1984) (noting that in such instances, "[w]hat Congress wanted was the compromise, not the objectives of the contending interests"). For helpful descriptions of the public choice critique of strong purposivism, see William N. Eskridge, Jr. and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 335 (1990) (explaining public choice theory's contention "when a court uses purposivist analysis to elaborate a statute, it may actually undo a deliberate and precisely calculated deal worked out in the legislative process"); Philip P. Frickey, From the Big Heat to the Big Sleep: The Revival of Theory in Statutory Interpretation, 77 Minn L Rev 241, 251 (1992) (discussing the claim that judges could "reach the wrong results" by "promoting a public policy purpose gleaned from the statute rather than following the true lines of legislative compromise"); Manning, 101 Colum L Rev at 18 (cited in note 24).
161. See, for example, Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv L Rev 4, 46 (1984) (noting that in such instances, "[w]hat Congress wanted was the compromise, not the objectives of the contending interests"). For helpful descriptions of the public choice critique of strong purposivism, see William N. Eskridge, Jr. and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 335 (1990) (explaining public choice theory's contention "when a court uses purposivist analysis to elaborate a statute, it may actually undo a deliberate and precisely calculated deal worked out in the legislative process"); Philip P. Frickey, From the Big Heat to the Big Sleep: The Revival of Theory in Statutory Interpretation, 77 Minn L Rev 241, 251 (1992) (discussing the claim that judges could "reach the wrong results" by "promoting a public policy purpose gleaned from the statute rather than following the true lines of legislative compromise"); Manning, 101 Colum L Rev at 18 (cited in note 24).
162. See, for example, Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv L Rev 4, 46 (1984) (noting that in such instances, "[w]hat Congress wanted was the compromise, not the objectives of the contending interests"). For helpful descriptions of the public choice critique of strong purposivism, see William N. Eskridge, Jr. and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 335 (1990) (explaining public choice theory's contention "when a court uses purposivist analysis to elaborate a statute, it may actually undo a deliberate and precisely calculated deal worked out in the legislative process"); Philip P. Frickey, From the Big Heat to the Big Sleep: The Revival of Theory in Statutory Interpretation, 77 Minn L Rev 241, 251 (1992) (discussing the claim that judges could "reach the wrong results" by "promoting a public policy purpose gleaned from the statute rather than following the true lines of legislative compromise"); Manning, 101 Colum L Rev at 18 (cited in note 24).
163. See generally Kenneth J. Arrow, Social Choice and Individual Values (Yale Univ Press, 2d ed 1963).
164. See Frank H. Easterbrook, Statutes' Domains, 50 U Chi L Rev 533, 547-48 (1983): Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice. Every system of voting has flaws. The one used by legislatures is particularly dependent on the order in which decisions are made. Legislatures customarily consider proposals one at a time and then vote them up or down. This method disregards third or fourth options and the intensity with which legislators prefer one option over another. Additional options can be considered only in sequence, and this makes the order of decision vital. It is fairly easy to show that someone with control of the agenda can manipulate the choice so that the legislature adopts proposals that only a minority support. The existence of agenda control makes it impossible for a court - even one that knows each legislator's complete table of preferences - to say what the whole body would have done with a proposal it did not consider in fact. See also id at 548 ("[W]hen logrolling is at work the legislative process is submerged and courts lose the information they need to divine the body's design."); Kenneth A. Shepsle, Congress Is a 'They,' Not an 'It': Legislative Intent as Oxymoron, 12 Intl Rev L & Econ 239, 244 (1992) ("Many policies, in principle, can topple an existing status quo. That some are more likely than others to actually do so is dependent on idiosyncratic, structural, proce" dural, and strategic factors, which are at best tenuously related to normative principles embraced by democratic theorists and philosophers.").
165. See Frank H. Easterbrook, Statutes' Domains, 50 U Chi L Rev 533, 547-48 (1983): Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice. Every system of voting has flaws. The one used by legislatures is particularly dependent on the order in which decisions are made. Legislatures customarily consider proposals one at a time and then vote them up or down. This method disregards third or fourth options and the intensity with which legislators prefer one option over another. Additional options can be considered only in sequence, and this makes the order of decision vital. It is fairly easy to show that someone with control of the agenda can manipulate the choice so that the legislature adopts proposals that only a minority support. The existence of agenda control makes it impossible for a court - even one that knows each legislator's complete table of preferences - to say what the whole body would have done with a proposal it did not consider in fact. See also id at 548 ("[W]hen logrolling is at work the legislative process is submerged and courts lose the information they need to divine the body's design."); Kenneth A. Shepsle, Congress Is a 'They,' Not an 'It': Legislative Intent as Oxymoron, 12 Intl Rev L & Econ 239, 244 (1992) ("Many policies, in principle, can topple an existing status quo. That some are more likely than others to actually do so is dependent on idiosyncratic, structural, proce" dural, and strategic factors, which are at best tenuously related to normative principles embraced by democratic theorists and philosophers.").
166. In other words, if one accepts the premises of public choice theory, the very notion "that statutes have purposes or embody policies becomes quite problematic, since the content of the statute simply reflects the haphazard effect of strategic behavior and procedural rules." Farber and Frickey, Law & Public Choice at 41 (cited in note 126) (critically discussing the implications of Arrovian public choice theory).
167. As Judge Easterbrook has explained, "[s]ometimes Congress specifies values or ends, things for the executive and judicial branches to achieve, but often it specifies means, creating loopholes but greater certainty." Frank H. Easterbrook, Text, Structure, and History in Statutory Interpretation, 17 Harv J L & Pub Pol 61, 68 (1994). Relying on "an imputed spirit to convert one approach into another dishonors the legislative choice as expressly as refusing to follow the law." Id.
168. See Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 6 (1998) (describing the Court's eclectic approach to statutory interpretation). For example, the modern Court sometimes engages in strongly purposive interpretation. See Clinton v New York, 524 US 417, 428-29 (1998) (broadening an expedited review provision because the literal meaning undermined the statutory purpose to provide "a prompt and authoritative judicial determination of the constitutionality of the [Line Item Veto] Act"); Lewis v United States, 523 US 155, 160 (1998) (refusing to enforce a statute's conventional meaning when "a literal reading of the words . . . would dramatically separate the statute from its intended purpose").
169. Bd. of Governors of the Federal Reserve Bd. v Dimension Finance Corp., 474 US 361, 372 (1986).
170. See, for example, MCI Telecommunications Corp. v FCC, 512 US 218, 231 (1994) (Scalia) (noting that judges "are bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes") (Scalia); Landgraf v USI Film Products, Inc., 511 US 244, 286 (1993) (Stevens) ("Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal."); West Virginia Univ. Hosps v Casey, 499 US 83, 98-99 (1990) (Scalia) ("The best evidence of . . . purpose is the statutory text adopted by both Houses of Congress and submitted to the President."); Pension Benefit Guaranty Corp. v LTV Corp., 496 US 633, 646-47 (1990) (Blackmun) ("'[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.'") (quoting Rodriguez v United States, 480 US 522, 526 (1987) (per curiam)).
171. Oncale v Sundowner Offshore Servs, Inc., 523 US 75, 79 (1998).
172. Brogan v United States, 522 US 398, 403 (1998). In Brogan, the Court refused to narrow 18 USC § 1001, which prescribes criminal penalties for any person who "knowingly and willfully . . . makes any false, fictitious or fraudulent statements or representations" concerning "any matter within the jurisdiction" of a federal agency. The courts of appeals had almost uniformly held that § 1001 incorporated an implied exception for the so-called "exculpatory no" - that is, falsely replying "no" to a federal investigator's question about culpability. Brogan, 522 US at 401 (collecting cases). Brogan defended that position by arguing that § 1001's purpose was to prevent the "perversion" of the governmental functions and that his simple denial of guilt did not produce that mischief. Although the Court had previously described § 1001's purpose in precisely such terms in United States v Gilliland, 312 US 86, 93 (1941), the majority in Brogan perceived "no inconsistency whatsoever between the proposition that Congress intended to protect the authorized functions of governmental departments . . . from perversion . . . and the proposition that the statute forbids all the deceptive practices described." Brogan, 522 US at 403-04 (quotation marks omitted).
173. Id; see also Sunstein, 47 Duke L J at 1044-46 (cited in note 28) (discussing the implications of Brogan and Oncale for the meaning of the FDCA).
174. See Pennsylvania Dep't of Corrections v Yeskey, 524 US 206, 212 (1998); see also, for example, NOW, Inc. v Scheidler, 510 US 249, 262 (1994) (distinguishing between ambiguity and breadth); United States v Monsanto, 491 US 600, 609 (1989) (same); Sedima, SPRL v Imrex Co., 473 US 479, 499 (1985) (same).
175. See text accompanying notes 93-95.
176. Chevron USA, Inc. v NRDC, Inc., 467 US 837 (1984).
177. Id at 865.
178. For an excellent discussion of the premise that many administrative statutes effectively grant agencies common law powers to adapt broadly articulated policies to unforeseen circumstances, see Sunstein, 47 Duke L J at 1019 (cited in note 28).
179. A constitutional preference for more accountable decision making is of course the standard explanation of Chevron deference. See, for example, Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L J 969, 978 (1992) ("In order to make deference a general default rule, the Court had to come up with some universal reason why administrative interpretations should be preferred to the judgments of Article III courts. Democratic theory supplied the justification; agency decisionmaking is always more democratic than judicial decisionmaking because all agencies are accountable (to some degree) to the President, and the President is elected by the people."); Pierce, 64 NYU L Rev at 1256 (cited in note 85) (Chevron's reasoning reflects "an effort to reconcile the administrative state with principles of democracy").
180. A constitutional preference for more accountable decision making is of course the standard explanation of Chevron deference. See, for example, Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L J 969, 978 (1992) ("In order to make deference a general default rule, the Court had to come up with some universal reason why administrative interpretations should be preferred to the judgments of Article III courts. Democratic theory supplied the justification; agency decisionmaking is always more democratic than judicial decisionmaking because all agencies are accountable (to some degree) to the President, and the President is elected by the people."); Pierce, 64 NYU L Rev at 1256 (cited in note 85) (Chevron's reasoning reflects "an effort to reconcile the administrative state with principles of democracy").
181. Crowell v Benson, 285 US 22, 62 (1932) ("When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."). Under classical avoidance doctrine, courts were to construe statutes, if possible, to avoid a conclusion of unconstitutionality. See John C. Nagle, Delaware & Hudson Revisited, 72 Notre Dame L Rev 1495, 1498-1504 (1997) (describing classical avoidance). The modern canon, in contrast, focuses on interpretations that "would raise serious constitutional problems." Edward J. DeBartolo Corp. v Florida Gulf Coast Bldg & Constr. Trades Council, 485 US 568, 575 (1988). This paper uses "the canon of avoidance" or "the avoidance canon" throughout to refer to the modern canon.
182. The following points are outlined in Henry J. Friendly, Benchmarks 211 (Univ of Chicago Press, 1967).
183. See, for example, Specter Motor Serv. v McLaughlin, 323 US 101, 105 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable."); Ashwander v TVA, 297 US 288, 346 (1936) (Brandeis concurring) ("The Court [has] developed . . . a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.").
184. See, for example, Siler v Louisville & Nashville R. Co., 213 US 175, 191 (1909) ("[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.").
185. See, for example, United States v Rumely, 328 US 41, 48 (1953) ("Grave constitutional questions are matters properly to be decided by this Court but only when they inescapably come before us for adjudication. Until then it is our duty to abstain from marking the boundaries of congressional power or delimiting the protection guaranteed by the [Constitution].").
186. Public Citizen, 491 US at 466.
187. See Solid Waste Agency of Northern Cook County v U.S. Army Corps of Engineers, 121 S Ct 675, 683 (2001) ("This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority."); DeBartolo, 485 US at 575 (noting that the canon of avoidance "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like th[e] Court, is bound by and swears an oath to uphold the Constitution").
188. See, for example, William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L Rev (2001) (forthcoming) (describing the legislative supremacy justification for the canon of avoidance).
189. Jones v United States, 526 US 227, 239 (2000) ("'[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [a court's] duty is to adopt the latter.'") (quoting United States ex rel Attorney General v Delaware & Hudson Co., 213 US 366, 408 (1919)).
190. United States v Monsanto, 491 US 600, 611 (1989) (quoting United States v Albertini, 472 US 675, 680 (1985)).
191. See, for example, Feltner v Columbia Pictures Television, Inc., 523 US 340, 358 (1998) (Scalia concurring in the judgment) (noting that "'[t]he doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one,'" for that "'would deprive the doctrine of all function'") (quoting Almendarez-Torres v United States, 523 US 224, 270 (1998) (Scalia dissenting)); Frederick Schauer, Ashwander Revisited, 1995 Supreme Court Review 71, 88 ("[A]voidance is only important in those cases in which the result is different from what the result would have been by application of a judge's or court's preconstitutional views about how the statute should be interpreted.").
192. See, for example, United States v X-Citement Video, Inc., 513 US 64 (1994) (rejecting the "most natural, grammatical reading" of a statute to avoid grave constitutional doubt); Ullman v United States, 350 US 422, 433 (1955) ("Indeed, the Court has stated that words may be strained 'in the candid service of avoiding a serious constitutional doubt.'") (quoting Rumely, 345 US at 47); see also, for example, Textile Workers Union v Lincoln Mills, 353 US 448, 477 (1957) (noting that the canon of avoidance "is normally invoked to narrow what would otherwise be the natural but constitutionally dubious scope of the language"); United States v Lovett, 328 US 303, 329 (1946) (Frankfurter concurring) ('"Words have been strained . . . to avoid that doubt.'").
193. Schauer, 1995 Supreme Court Review at 82 (cited in note 157).
194. Id at 74.
195. Jerry L. Mashaw, Greed, Chaos, and Governance 105 (Yale Univ Press, 1997).
196. See id.
197. See id at 102-03 (discussing the game theoretic implications of faulty interpretation in general); see also Richard A. Posner, Statutory Interpretation - In the Classroom and Courtroom, 50 U Chi L Rev 800, 816 (1983) ("Congress's practical ability to overrule a judicial decision misconstruing one of its statutes, given all the other matters pressing for its attention, is less today than ever before, and probably was never very great.").
198. See Posner, 50 U Chi L Rev at 816 (cited in note 163) ("The practical effect of construing statutes to avoid raising constitutional questions is therefore to enlarge the already vast reach of constitutional prohibition beyond even the most extravagant modern interpretation of the Constitution - to create a judge-made constitutional penumbra . . . ."). Justice Kennedy has voiced similar concerns: [The canon of avoidance] should not be given too broad a scope lest a whole new range of Government action be proscribed by interpretive shadows cast by constitutional provisions that might or might not invalidate it. The fact that a particular application of the clear terms of a statute might be unconstitutional does not provide us with a justification for ignoring the plain meaning of the statute. If that were permissible, then the power of judicial review of legislation could be made unnecessary, for whenever the application of a statute would have potential inconsistency with the Constitution, we could merely opine that the statute did not cover the conduct in question because it would be discomforting or even absurd to think that Congress intended to act in an unconstitutional manner. Public Citizen, 491 US at 481 (Kennedy concurring in the judgment).
199. For recent critiques of the canon of avoidance, see, for example, Kelley, 86 Cornell L Rev (forthcoming) (cited in note 154) (arguing that applying the canon of avoidance to administrative statutes ignores the lessons of Chevron and undervalues the executive's independent constitutional duty under Article II, § 3 to "take Care that the Laws be faithfully executed"); Adrian Vermeule, Saving Constructions, 85 Geo L J 1945, 1959-64 (1997) (arguing that the modern canon of avoidance and the doctrine of severability are in tension with each other both in purpose and effect).
200. For recent critiques of the canon of avoidance, see, for example, Kelley, 86 Cornell L Rev (forthcoming) (cited in note 154) (arguing that applying the canon of avoidance to administrative statutes ignores the lessons of Chevron and undervalues the executive's independent constitutional duty under Article II, § 3 to "take Care that the Laws be faithfully executed"); Adrian Vermeule, Saving Constructions, 85 Geo L J 1945, 1959-64 (1997) (arguing that the modern canon of avoidance and the doctrine of severability are in tension with each other both in purpose and effect).
201. See, for example, Sunstein, 67 U Chi L Rev at 331 (cited in note 5) (defending the canon of avoidance as a means "to promote some goal with a constitutional foundation"); Vermeule, 85 Geo L J at 1963 (cited in note 165) (noting that the modern canon of avoidance "is a means of overprotecting constitutional values through statutory interpretation"); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549, 1587 (2000) (noting that the avoidance canon does not further legislative intent, but "protects the constitutional values embodied in the provision that creates the constitutional 'doubt'").
202. See, for example, Sunstein, 67 U Chi L Rev at 331 (cited in note 5) (defending the canon of avoidance as a means "to promote some goal with a constitutional foundation"); Vermeule, 85 Geo L J at 1963 (cited in note 165) (noting that the modern canon of avoidance "is a means of overprotecting constitutional values through statutory interpretation"); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549, 1587 (2000) (noting that the avoidance canon does not further legislative intent, but "protects the constitutional values embodied in the provision that creates the constitutional 'doubt'").
203. See, for example, Sunstein, 67 U Chi L Rev at 331 (cited in note 5) (defending the canon of avoidance as a means "to promote some goal with a constitutional foundation"); Vermeule, 85 Geo L J at 1963 (cited in note 165) (noting that the modern canon of avoidance "is a means of overprotecting constitutional values through statutory interpretation"); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549, 1587 (2000) (noting that the avoidance canon does not further legislative intent, but "protects the constitutional values embodied in the provision that creates the constitutional 'doubt'").
204. See DeBartolo, 485 US at 575-76 (applying NLRA's broad terms to ban peaceful, truthful leafleting would raise a serious constitutional question).
205. See Bressman, 109 Yale L J at 1415 (cited in note 80) ("[T]o apply interpretive norms in such cases would frustrate Congress's intent.").
206. Indeed, the avoidance of serious nondelegation questions is not merely self-defeating, but is a net detriment to the values sought to be preserved. Avoidance of nondelegation questions, as discussed, disturbs the outcome of the legislative process. By definition, however, such avoidance is sometimes - but not always - necessary to avoid an unconstitutional delegation. Therefore, the certain detriment to the legislative process that flows from avoidance corresponds to an uncertain benefit of avoiding what might or might not ultimately be an unconstitutional delegation.
207. See Antonin Scalia, The Disease as Cure, 1979 Wash U L Q 147 (1979).
208. See, for example, Whitman v American Trucking Ass'ns, Inc., 121 S Ct 903, 913 (2001) ("In the history of this Court we have found the requisite 'intelligible principle' lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by promoting 'fair competition.'").
209. In this context, Jerry Mashaw's observations make particularly clear that outright invalidation would better serve the interests implicit in bicameralism and presentment. Consider the following example: If the Court narrows the OSH Act by requiring a threshold finding of "significant risk," that judicially imposed policy will be immune from legislative correction if the House, the Senate, or the President prefers that result to the likely outcome of the full legislative process. Conversely, if the Court were to declare the OSH Act unconstitutional on nondelegation grounds, that action would trigger a process that directly serves the interests of the nondelegation doctrine. By hypothesis, there is no question about the constitutionality of the underlying policy objective (workplace safety), merely the manner of its articulation. If judicial invalidation were to return matters to the pre-OSH Act status quo, then the House, the Senate, and the President would have an incentive to try again to bargain over an acceptable (but more specific) policy that all three prefer to the pre-Act status quo. If that process is successful, more precise policies will have passed through the filter of bicameralism and presentment, thereby addressing nondelegation concerns. If, however, the three relevant entities cannot agree on a more precise statute, that result also serves the interests of bicameralism and presentment, which aim in part to filter out laws that cannot secure the assent of the three constitutionally specified actors. In short, whereas using the avoidance canon disserves the goals of bicameralism and presentment, invalidation in appropriate circumstances would advance those goals.
210. This claim does not contradict Professor Sunstein's more general point that, in most contexts, applying the canon of avoidance to narrow an administrative statute will not raise the same administrability concerns as direct enforcement of the nondelegation doctrine. See Sunstein, 67 U Chi L Rev at 338 (cited in note 5). Consider, for example, the decision to construe the broad terms of the NRLA narrowly to avoid a serious First Amendment question. In such a case, the Court "do[es] not ask the hard-to-manage question whether the legislature has exceeded the permissible level of discretion, but pose[s] instead the far more manageable question whether the agency has been given the discretion to decide something that (under the appropriate canon) only legislatures may decide." Id. But when the canon of avoidance is invoked to avoid a serious question under the nondelegation doctrine as such, the hard-to-manage line-drawing questions return because the underlying constitutional question irreducibly involves matters of degree.
211. See US Const, Art III, § 1 (assuring life tenure and salary protection during "good Behaviour").
212. Congress exercises more effective control over administrative agencies than over the judiciary. See Landes and Posner, 18 J L & Econ at 879 (cited in note 129). It can more readily cut agency budgets, subject agency officials to discomfiting oversight hearings, and refuse to confirm or reconfirm top agency officials. See Richard A. Posner, Theories of Economic Regulation, 5 Bell J Econ & Mgmt Sci 335, 338 (1974); Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Pol Econ 765, 769 (1983). In contrast, Congress has relatively ineffective tools at its disposal to discipline judges who do not construe statutes to the liking of its members. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 260-61 (1986).
213. Congress exercises more effective control over administrative agencies than over the judiciary. See Landes and Posner, 18 J L & Econ at 879 (cited in note 129). It can more readily cut agency budgets, subject agency officials to discomfiting oversight hearings, and refuse to confirm or reconfirm top agency officials. See Richard A. Posner, Theories of Economic Regulation, 5 Bell J Econ & Mgmt Sci 335, 338 (1974); Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Pol Econ 765, 769 (1983). In contrast, Congress has relatively ineffective tools at its disposal to discipline judges who do not construe statutes to the liking of its members. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 260-61 (1986).
214. Congress exercises more effective control over administrative agencies than over the judiciary. See Landes and Posner, 18 J L & Econ at 879 (cited in note 129). It can more readily cut agency budgets, subject agency officials to discomfiting oversight hearings, and refuse to confirm or reconfirm top agency officials. See Richard A. Posner, Theories of Economic Regulation, 5 Bell J Econ & Mgmt Sci 335, 338 (1974); Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Pol Econ 765, 769 (1983). In contrast, Congress has relatively ineffective tools at its disposal to discipline judges who do not construe statutes to the liking of its members. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 260-61 (1986).
215. Congress exercises more effective control over administrative agencies than over the judiciary. See Landes and Posner, 18 J L & Econ at 879 (cited in note 129). It can more readily cut agency budgets, subject agency officials to discomfiting oversight hearings, and refuse to confirm or reconfirm top agency officials. See Richard A. Posner, Theories of Economic Regulation, 5 Bell J Econ & Mgmt Sci 335, 338 (1974); Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Pol Econ 765, 769 (1983). In contrast, Congress has relatively ineffective tools at its disposal to discipline judges who do not construe statutes to the liking of its members. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 260-61 (1986).
216. See Manning, 97 Colum L Rev at 711-14 (cited in note 21).
217. See Washington Metropolitan Airports Authority v Citizens for the Abatement of Aircraft Noise, Inc., 501 US 252 (1992); Bowsher v Synar, 478 US 714 (1986); INS v Chadha, 462 US 919 (1983).
218. See, for example, Richard J. Pierce, Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 Am U L Rev 391, 413-14 (1987).
219. See Manning, 97 Colum L Rev at 712 (cited in note 21).
220. Brown & Williamson, 529 US at 144.
221. Id.
222. Id.
223. For a thoughtful critique of the ratification argument as applied to the FDA's tobacco jurisdiction, see Sunstein, 47 Duke L J at 1046-50 (cited in note 28).
224. See, for example, Bragdon v Abbott, 524 US 624, 644 (1997) ("When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well."); Lorillard v Pons, 434 US 575, 579 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change . . . .")
225. See, for example, Herman & MacLean v Huddleston, 459 US 375, 384-85 (1983) (inferring ratification of cumulative interpretation of Section 10(b) of the Securities Exchange Act of 1934 when Congress extensively revised securities laws without changing that provision); Lykes v United States, 343 US 118, 127 (1951) ("Such a [Treasury] regulation is entitled to substantial weight. . . . Since the publication of that Treasury Decision, Congress has made many amendments to the Internal Revenue Code without revising this administrative interpretation . . . .").
226. See Central Bank of Denver, NA v First Interstate Bank of Denver, NA, 511 US 164, 185-87 (1994) (Kennedy, joined by Rehnquist, O'Connor, Scalia, and Thomas); see also, for example, Wells v United States, 519 US 482, 495-96 (1997) (noting that claims of ratification were weak even though Congress had repeatedly amended a statute without "touching" the language that had been construed).
227. The Court has reasoned: It does not follow . . . that Congress' failure to overturn a statutory precedent is reason for this Court to adhere to it. It is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative approval of the [courts'] statutory interpretation. . . . Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. U.S. Const., Art. I, § 7, cl. 2. Congressional inaction cannot amend a duly enacted statute. See Central Bank of Denver, 511 US at 186 (quoting Patterson v McLean Credit Union, 491 US 164, 175 n 1 (1989), which quoted, in turn, Johnson v Transportation Agency, Santa Clara County, 480 US 616, 672 (1987) (Scalia dissenting)). Importantly, this reasoning relied on and extended Patterson's conclusion that Congress does not acquiesce in a judicial or administrative interpretation simply by leaving it intact over time. Whereas Patterson applied that insight to Congress's simple failure to act, Central Bank of Denver extended it to Congress's failure to act in the context of a statutory amendment. Although acknowledging that its precedents were uneven on the question, the Court emphasized its present view that arguments ultimately predicated on legislative inaction "deserve little weight." Central Bank of Denver, 511 US at 187. For a differing view of congressional inaction, see, for example, Strauss, 1994 Supreme Court Review at 512-13 (cited in note 21) (arguing that legislative silence is a meaningful signal in the development of a consensus on statutory meaning through the cooperative interaction of Congress, agencies, and the courts over time).
228. See, for example, Reno v Bossier Parish School Dist., 520 US 471, 484-85 (1997) ("Our ultimate conclusion is also not undercut by statements found in the 'postenactment legislative record,' . . . given that 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.'") (quoting United States v Price, 361 US 304, 313 (1960)); Mackey v Lanier Collection Agencies, 486 US 825, 840 (1988) ("[T]hese views -absent an amendment to the original language of the section - do not direct our resolution of this case. Instead, we must look at the language of [the statute] and its structure, to determine the intent of the Congress that originally enacted the provision in question. 'It is the intent of the Congress that enacted [the section] . . . that controls.'") (quoting Teamsters v United States, 431 US 324, 354 n 39 (1977)); Haynes v United States, 390 US 85, 87 n 4 (1968) ("The views of a subsequent Congress of course provide no controlling basis from which to infer the purposes of an earlier Congress.").
229. For example, in Red Lion Broadcasting Co., Inc. v FCC, 395 US 367, 369, 380 (1969), the Court held that Congress had subsequently given "explicit recognition" to the FCC's fairness doctrine. Through that doctrine, the FCC had implemented the Communications Act of 1934's "public interest" standard by requiring broadcasters to provide discussion of public issues and to ensure that both sides of an issue received fair coverage. When Congress amended the Act to compel broadcasters to give equal time to political candidates, it stated that the amendment left intact "the obligations imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Act of Sept 14, 1959, § 1, 73 Stat 557, 557. In those
230. See, for example, Public Employees Retirement System of Ohio v Betts, 492 US 158, 167-68 (1989) (rejecting an interpretation of the Age Discrimination in Employment Act found in legislative history accompanying amendments because the amendments did not modify the language being interpreted); CPSC v GTE Sylvania. Inc., 447 US 102, 118 n 13 (1980) (refusing to credit a "mere statement in a conference report of [subsequent] legislation as to what the Committee believes an earlier statute meant"); Rainwater v United States, 356 US 590, 593 (1958) (holding that when a statutory amendment suggests an implicit understanding of prior legislation, that amendment "is merely an expression of how the [subsequent] Congress interpreted a statute passed by another Congress," and "such interpretation has very little, if any significance"). This premise now holds even when a committee of Congress interprets a prior statute during the course of that statute's reenactment. See Pierce v Underwood, 487 US 552, 566 (1988) ("[I]t is the function of the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means.").
231. Indeed, the validity of legislation does not remotely depend on the correctness of any assumptions that underlay its enactment. See Paris Adult Theaters I v Slaton, 413 US 49, 61 (1974) ("From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs."). Of course, legislative assumptions may illuminate the meaning of an ambiguous statutory term. In Brown & Williamson, however, the Court did not use Congress's assumptions to inform any particular language in the six post-FDCA tobacco statutes; rather, it reasoned the mere enactment of those statutes gave legal force to Congress's disembodied, general assumptions about the state of the law.
232. See Brown & Williamson, 529 US at 144-61.
233. See, for example, United States v Sells Engineering, 463 US 418, 439 (1983) ("In any event, we think the most reliable evidence of what Congress in 1977 understood to be standard Department practice was what Thornburgh, the Department's official representative at the Hearings, stated it to be."); United States v Vogel Fertilizer Co., 455 US 16, 31 (1982); Zuber v Allen, 396 US 168, 192 (1969). In general, the Court gives testimony at legislative hearings little weight. See, for example, Kelly v Robinson, 479 US 36, 51 n 13 (1984) (declining to "accord any significance" to statements made in hearings when "none of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports"); Ernst & Ernst v Hochfelder, 425 US 185, 204, n 24 (1976) ("Remarks of this kind made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight"); S & E Contractors, Inc. v United States, 406 US 1, 13 n 9 (1972) ("In construing laws [the Court has] been extremely wary of testimony before committee hearings and of debates on the floor of Congress save for precise analyses of statutory phrases by the sponsors of the proposed laws."); McCaughn v Hershey Chocolate Co., 283 US 488, 493-94 (1931) ("Nor do we think of significance the fact . . . that statements inconsistent with the conclusion which we reach were made to committees of Congress or in discussions on the floor of the Senate by senators who were not in charge of the bill. For reasons which need not be restated, such individual expressions are with out weight in the interpretation of a statute."); Reed Dickerson, Statutory Interpretation: Dipping into Legislative History, 112 Hofstra L Rev 1125, 1131 (1983) ("What is said at [committee] hearings is usually so unreliable, even when it appears to make good sense, that courts should pay little heed to it, except possibly for confirmatory purposes."). Since the rise of modern textualism, the Court had decreased its reliance on committee hearings. See William N. Eskridge, Jr. and Philip P. Frickey, Cases and Materials on Legislation 774 (West, 2d ed 1995).
234. See, for example, United States v Sells Engineering, 463 US 418, 439 (1983) ("In any event, we think the most reliable evidence of what Congress in 1977 understood to be standard Department practice was what Thornburgh, the Department's official representative at the Hearings, stated it to be."); United States v Vogel Fertilizer Co., 455 US 16, 31 (1982); Zuber v Allen, 396 US 168, 192 (1969). In general, the Court gives testimony at legislative hearings little weight. See, for example, Kelly v Robinson, 479 US 36, 51 n 13 (1984) (declining to "accord any significance" to statements made in hearings when "none of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports"); Ernst & Ernst v Hochfelder, 425 US 185, 204, n 24 (1976) ("Remarks of this kind made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight"); S & E Contractors, Inc. v United States, 406 US 1, 13 n 9 (1972) ("In construing laws [the Court has] been extremely wary of testimony before committee hearings and of debates on the floor of Congress save for precise analyses of statutory phrases by the sponsors of the proposed laws."); McCaughn v Hershey Chocolate Co., 283 US 488, 493-94 (1931) ("Nor do we think of significance the fact . . . that statements inconsistent with the conclusion which we reach were made to committees of Congress or in discussions on the floor of the Senate by senators who were not in charge of the bill. For reasons which need not be restated, such individual expressions are with out weight in the interpretation of a statute."); Reed Dickerson, Statutory Interpretation: Dipping into Legislative History, 112 Hofstra L Rev 1125, 1131 (1983) ("What is said at [committee] hearings is usually so unreliable, even when it appears to make good sense, that courts should pay little heed to it, except possibly for confirmatory purposes."). Since the rise of modern textualism, the Court had decreased its reliance on committee hearings. See William N. Eskridge, Jr. and Philip P. Frickey, Cases and Materials on Legislation 774 (West, 2d ed 1995).
235. See Brown & Williamson, 529 US at 182 (Breyer dissenting) (noting that the postenactment legislative history "can be read either as (a) 'ratif[ying]' a no-jurisdiction assumption or as (b) leaving the jurisdictional question just where Congress found it") (citation omitted).
236. Administrative agencies presumptively have the authority to change their positions provided that they offer a reasoned explanation for the change. See Chevron USA, Inc. v NRDC, Inc., 467 US 837, 863 ("An initial agency interpretation is not instantly carved in stone."). Thus, even in the context of classic ratification, the Court has indicated that ratification connotes an acceptance of the agency's position as legitimate, not the adoption of the agency's position as the only legitimate interpretation of a statute. See, for example, Motor Vehicle Mfrs Ass'n v State Farm Mutual Auto Ins Co., 463 US 29, 45 ("[E]ven an unequivocal ratification - short of statutory incorporation - . . . would not connote approval or disapproval of an agency's later decision to rescind [a] regulation."); Trans World Airlines, Inc. v Hardison, 432 US 63, 75 n 10 (1977) (noting that when Congress has ratified an administrative interpretation through positive legislation, that interpretation "is entitled to some deference, at least sufficient . . . to warrant our accepting the guideline as a defensible construction"); Udall v Boesche, 373 US 472, 483 (1963) ("The conclusion is plain that Congress, if it did not ratify the Secretary's conduct, at least did not regard it as inconsistent with the . . . Act."). Because the ratification doctrine typically arises in the context of defending administrative interpretations, invocation of that doctrine rarely even poses the question whether ratification precludes an agency from changing its position. But see, for example, Telecommunications Research & Action Center v FCC, 801 F2d 501, 517 (DC Cir 1986) ("We do not believe that language adopted in 1959 made the fairness doctrine a binding statutory obligation; rather, it ratified the Commission's longstanding position that the public interest standard authorizes the fairness doctrine."), cert denied, 482 US 519 (1987).
237. To be sure, the Court cited a small number of statements by individual legislators agreeing with the administration's position, but those remarks are too sporadic and indefinite to support any inference that Congress affirmatively accepted the PDA's position. Specifically, the Court cited only three examples of legislative statements relating to post-FDCA tobacco bills. See Brown & Williamson, 529 US at 150-51, 154-55. First, in passing the Public Health Cigarette Smoking Act of 1969, Pub L No 91-222, which banned certain cigarette advertisements and strengthened warning label requirements, Congress extended an existing prohibition against any other required cigarette labeling. See § 5(a), 84 Stat 88. In connection with that legislation, the chairman of the responsible House committee remarked that "the Congress - the body elected by the people - must make the policy determinations involved in this determination - and not some agency made up of appointed officials." 116 Cong Rec 7920 (1970) (Rep Staggers). This open-ended statement, made in the context of a specific prohibition on agency-imposed labeling requirements, hardly supports the more general conclusion that Congress intended to adopt the FDA's narrow view of its tobacco jurisdiction. Second, when Congress eliminated the Consumer Product Safety Commission's authority over tobacco in the Consumer Product Safety Commission Improvements Act of 1976, Pub L No 94-284, § 3(c), 90 Stat 503, codified at 15 USC § 1261(f)(2), a separate statement to a Senate Report explained that the statute "unmistakably reaffirm[ed] the clear mandate of Congress that the basic regulation of tobacco and tobacco products is governed by . . . legislation . . . and that any further regulation . . . must be reserved for specific congressional action." S Rep 251, 94th Cong, 1st Sess 43 (1975) (Sens Hartke, Hollings, Ford, Stevens, and Beall). Putting to one side the fact that this legislation dealt with the CSPC (rather than the FDA), it is noteworthy that these Senators were obliged to issue their views as a separate statement; this may suggest that such views were not shared by the relevant committee, much less by Congress as a whole. Third, in connection with the Comprehensive Smoking Education Act, Pub L No 980474, 98 Stat 2200 (1984), Senator Hawkins argued that legislation was necessary because "[u]nder the [FDCA], Congress exempted tobacco products." 130 Cong Rec 36953. The statement of an individual legislator in the context of a floor debate carries little weight in interpretation. I cite these examples not to establish the contents of the legislative history, but merely to show that the evidence of legislative sentiment relied on by the Court was sparse and highly attenuated.
238. Central Bank of Denver, 511 US at 187 (quoting Pension Benefit Guaranty Corporation v LTV Corp., 496 US 633, 650 (1990)).
239. See Solid Waste Engineers of Cook County v Army Corps of Engineers, 121 S Ct 675, 681 (2001).
240. Id.
241. Brown & Williamson, 529 US at 157.
242. Id at 145 (quoting United States v Fausto, 448 US 439, 453 (1988)).
243. Id at 132.
244. Pub L No 89-92, § 5(a), 79 Stat 283 ("Warning: Cigarette Smoking May Be Hazardous to Your Health.").
245. Id § 2, 79 Stat 282, codified at 15 USC § 1331.
246. Id § 5(a), 79 Stat 283.
247. See id § 10, 79 Stat 284.
248. Pub L No 91-222, § 5(a), 84 Stat 88, codified at 15 USC 1334(a).
249. Id §§ 4 and 6, 84 Stat 88-89.
250. Comprehensive Smoking Education Act, Pub L No 98-474, § 4(a), 98 Stat 2200, 2201-03.
251. Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub L 99-252, 100 Stat 30, codified at 15 USC § 4401 et seq.
252. Pub L No 102-321, § 202, 106 Stat 394, codified at 42 USC § 300x et seq.
253. See Brown & Williamson, 529 US at 144 ("Congress has created a distinct regulatory scheme to address the problem of tobacco and health, and that scheme, as presently constructed, precludes any role for the FDA.").
254. See text accompanying notes 237-38.
255. See text accompanying note 48.
256. 42 USC § 300x-26(a)(1).
257. Id § 300x-26(b)(1).
258. See note 49.
259. See 15 USC §§ 1335, 4402(f).
260. Morales v Trans World Airlines, Inc., 504 US 374, 385 (1992); see also, for example, Gozlon-Peretz v United States, 498 US 395, 406 (1991) ("A specific provision controls over one of more general application."); Radzanower v Touche Ross & Co., 426 US 148, 153 (1976) ("'Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.'") (quoting Morton v Mancari, 417 US 535, 550-51 (1974)).
261. Clifford F. MacEvoy Co. v United States, 322 US 102, 107 (1944). This premise, moreover, also finds expression in the established maxim of ejusdem generis, which provides that "when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration." Norfolk & Western R. Co. v Train Dispatchers, 499 US 117, 129 (1991); see also, for example, Cleveland v United States, 329 US 14, 18 (1946) ("Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it."); Gooch v United States, 297 US 124, 128 (1936) (noting that canon of ejusdem generis "limits general terms which follow specific ones to matters similar to those specified").
262. Fausto v United States, 484 US 439, 453 (1988).
263. United States v Estate of Romani, 523 US 517, 532 (1998).
264. In contrast with a general statute, a specific statute is more likely to reflect Congress's "detailed judgment" about the appropriate way to "accommodate" competing policy concerns relating to a particular subject. Estate of Romani, 523 US at 532; see Easterbrook, 50 U Chi L Rev at 547 (cited in note 132) ("A legislature that tries to approach the line where costs begin to exceed benefits is bound to leave a trail of detailed provisions, which . . . would preclude judges from attempting to fill gaps."). have argued elsewhere that bicameralism and presentment require special respect for the specific results of such a compromise. See Manning, 101 Colum L Rev at 70-78 (cited in note 24). That process effectively establishes a supermajority requirement by allocating lawmaking authority among distinct institutions answering to different constituencies. See James M. Buchanan and Gordon Tullock, The Calculus of Consent 235-26 (Michigan, 1962). So understood, it gives minorities an exaggerated right to protect themselves against majority factions through their ability to block legislation or, as a condition of assent, to insist upon a compromise offering less than the full extent of what the majority might otherwise desire. See Manning, 101 Colum L Rev at 77-78 (cited in note 24).
265. In contrast with a general statute, a specific statute is more likely to reflect Congress's "detailed judgment" about the appropriate way to "accommodate" competing policy concerns relating to a particular subject. Estate of Romani, 523 US at 532; see Easterbrook, 50 U Chi L Rev at 547 (cited in note 132) ("A legislature that tries to approach the line where costs begin to exceed benefits is bound to leave a trail of detailed provisions, which . . . would preclude judges from attempting to fill gaps."). have argued elsewhere that bicameralism and presentment require special respect for the specific results of such a compromise. See Manning, 101 Colum L Rev at 70-78 (cited in note 24). That process effectively establishes a supermajority requirement by allocating lawmaking authority among distinct institutions answering to different constituencies. See James M. Buchanan and Gordon Tullock, The Calculus of Consent 235-26 (Michigan, 1962). So understood, it gives minorities an exaggerated right to protect themselves against majority factions through their ability to block legislation or, as a condition of assent, to insist upon a compromise offering less than the full extent of what the majority might otherwise desire. See Manning, 101 Colum L Rev at 77-78 (cited in note 24).
266. In contrast with a general statute, a specific statute is more likely to reflect Congress's "detailed judgment" about the appropriate way to "accommodate" competing policy concerns relating to a particular subject. Estate of Romani, 523 US at 532; see Easterbrook, 50 U Chi L Rev at 547 (cited in note 132) ("A legislature that tries to approach the line where costs begin to exceed benefits is bound to leave a trail of detailed provisions, which . . . would preclude judges from attempting to fill gaps."). have argued elsewhere that bicameralism and presentment require special respect for the specific results of such a compromise. See Manning, 101 Colum L Rev at 70-78 (cited in note 24). That process effectively establishes a supermajority requirement by allocating lawmaking authority among distinct institutions answering to different constituencies. See James M. Buchanan and Gordon Tullock, The Calculus of Consent 235-26 (Michigan, 1962). So understood, it gives minorities an exaggerated right to protect themselves against majority factions through their ability to block legislation or, as a condition of assent, to insist upon a compromise offering less than the full extent of what the majority might otherwise desire. See Manning, 101 Colum L Rev at 77-78 (cited in note 24).
267. In contrast with a general statute, a specific statute is more likely to reflect Congress's "detailed judgment" about the appropriate way to "accommodate" competing policy concerns relating to a particular subject. Estate of Romani, 523 US at 532; see Easterbrook, 50 U Chi L Rev at 547 (cited in note 132) ("A legislature that tries to approach the line where costs begin to exceed benefits is bound to leave a trail of detailed provisions, which . . . would preclude judges from attempting to fill gaps."). have argued elsewhere that bicameralism and presentment require special respect for the specific results of such a compromise. See Manning, 101 Colum L Rev at 70-78 (cited in note 24). That process effectively establishes a supermajority requirement by allocating lawmaking authority among distinct institutions answering to different constituencies. See James M. Buchanan and Gordon Tullock, The Calculus of Consent 235-26 (Michigan, 1962). So understood, it gives minorities an exaggerated right to protect themselves against majority factions through their ability to block legislation or, as a condition of assent, to insist upon a compromise offering less than the full extent of what the majority might otherwise desire. See Manning, 101 Colum L Rev at 77-78 (cited in note 24).
268. See, for example, Gomez v United States, 490 US 858, 871-72 (1989): Through gradual congressional enlargement of magistrates' jurisdiction, the Federal Magistrates Act now expressly authorizes magistrates to preside at jury trials of all civil disputes and criminal misdemeanors, subject to special assignment, consent of the parties, and judicial review. The Act further details magistrates' functions regarding pretrial and post-trial matters, specifying two levels of review depending on the scope and significance of the magistrate's decision. The district court retains the power to assign to magistrates unspecified "additional duties," subject only to conditions or review that the court may choose to impose. By a literal reading this additional duties clause would permit magistrates to conduct felony trials. But the carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases should be construed as an implicit withholding of the authority to preside at a felony trial. See also, for example, International Paper Co. v Ouellette, 479 US 481, 494 (1987) ("[W]e do not believe that Congress intended to undermine this carefully drawn statute through a general saving clause.").
269. O'Melveny & Myers v FDIC, 512 US 79, 83 (1994) (quoting Erie R. Co. v Tompkins, 304 US 64, 78 (1938)); see also, for example, Northwest Airlines, Inc. v Transport Workers Union, 451 US 77, 95 (1981) ("[I]t remains true that federal courts, unlike their state counterparts, are courts of limited jurisdiction that have not been vested with open-ended law-making powers."); United States v Standard Oil Co., 332 US 301, 313 (1947) ("[I]n the federal scheme our part in that work [of law creation], and the part of the other federal courts, outside the constitutional area is more modest than that of the state courts, particularly in the freedom to create new common law liabilities . . . .").
270. Professor Brad Clark has recently marshaled substantial historical materials suggesting that at least some of the "enclaves" can be re-rationalized as rules of decision designed to implement various aspects of the constitutional structure. See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U Pa L Rev 1245 (1996). For present purposes, I assume arguendo that the Court has properly characterized the relevant exercise of authority in these enclaves as federal common law making power.
271. Texas Indus. v Radcliff Materials, 451 US 630, 641 (1980) (footnotes omitted).
272. 451 US 304 (1981).
273. 33 USC § 1251 et seq.
274. The Court had recognized that common law nuisance action in an earlier incarnation of the same case, decided before the FWPCA's enactment. See Illinois v Milwaukee, 406 US 91 (1972).
275. Milwaukee v Illinois, 451 US at 314 (quoting Committee for Consideration of Jones Falls Sewage System v Train, 539 F2d 1006, 1008 (4th Cir 1976) (en banc)).
276. Id.
277. Id at 315. It must be noted that the Court's approach is in some tension with the long-standing principle that "[s]tatutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." Isbrandtsen Co. v Johnson, 343 US 779, 783 (1952). The Court resolves that tension by holding that the statute must "'speak directly'" to the question previously covered by the common law before it may displace that prior law. See United States v Texas, 507 US 527, 534 (1993) (citation omitted); see also, for example, County of Oneida v Oneida Indian Nation, 470 US 226, 237 (1985) (holding that the Nonintercourse Act of 1793 does not displace federal common law relating to unlawful conveyance of Native American lands because it "does not speak directly to the question of remedies" for such conveyances).
278. Milwaukee v Illinois, 451 US at 315 ("Our commitment to the separation of powers is too fundamental to continue to rely on federal common law by judicially decreeing what accords with common sense and the public weal when Congress has addressed the problem.") (internal quotation marks omitted) (quoting TVA v Hill, 437 US 153, 195 (1978)).
279. Id at 317.
280. See, for example, Middlesex County Sewerage Auth. v National Sea Clammers Ass'n, 453 US 1, 14 (1981) ("In view of these elaborate enforcement provisions it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under [the Marine Protection, Research, and Sanctuaries Act of 1972] and FWPCA."); Texas Indus., 451 US at 644 (refusing to recognize common law authority to supplement the remedies of the Sherman Act because "the remedial provisions in the anti-trust laws are detailed and specific"); Mobil Oil Corp. v Higginbotham, 436 US 618, 625 (1978) ("The Death on the High Seas Act . . . announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. . . . The Act does not address every issue of wrongful-death law, . . . but when it does speak directly to a question, the courts are not free to 'supplement' Congress' answer so thoroughly that the Act becomes meaningless."); Arizona v California, 373 US 546, 565-66 (1963) ("It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between States. But in those cases Congress had not made any statutory apportionment."); cf. Transamerica Mortgage Advisors, Inc. v Lewis, 444 US 11, (1979) ("[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.").
281. See, for example, Morton v Mancari, 417 US 535, 550 (1974) ("In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable."); Georgia v Pennsylvania R. Co., 324 US 439, 456-57 (1945) ("Only a clear repugnancy between the old . . . and the new [law] results in the former giving way . . .").
282. Such a conclusion might be warranted if one accepts the background assumption that repeals by implication are disfavored. See United States v United Continental Tuna Corp., 425 US 164, 168 (1976).
283. The Court has thus explained that the specificity canon prevents a "narrow, precise, and specific" statute from being "submerged" by judicial or agency elaboration of a distinct statute covering "a more generalized spectrum." Touche Ross & Co., 426 US at 153; see Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law 98 (Baker, Voorhis & Co., John Norton Pomeroy 2d ed 1874) (noting that the specificity canon seeks to preserve the fruits of a process in which "the mind of the legislator has been turned to the details of a subject, and he has acted upon it"). This consideration, moreover, distinguishes the Court's use of the specificity canon from its reliance on ratification arguments to narrow the FDCA. Although the ratification argument also serves the interest in specific, rather than general, policy-making, I have previously attempted to show that, in doing so, it rests upon erroneous assumptions about the discernment of legislative intent - assumptions that contradict the premises of bicameralism and presentment. The specificity canon, in contrast, narrows a broad delegation to preserve specific policies that Congress has properly enacted into law through bicameralism and presentment.
284. See Sunstein, 47 Duke L J at 1050 (cited in note 28).
285. Of course, the specificity canon supplies only a default position. It does not apply when Congress has otherwise indicated its desire not to displace background agency authority through specific legislation on the same subject. In the context of tobacco, there may be an idiosyncratic reason to think that the Court's displacement of the PDA's tobacco authority contradicted legislative directions. In its post-FDCA legislation, Congress expressly foreclosed any "additional" labeling requirements. See, for example, 15 USC § 1334(a). One might infer from this legislation that when Congress wished to bar further agency action, it did so expressly. Because no similar statutory provision addresses tobacco advertising or sales to minors, the labeling provisions may themselves carry a crucial negative implication. Whatever the correct answer in the particular circumstances of Brown & Williamson, however, the specificity canon, properly applied, may suggest a basis for limiting delegations in the future.