The Accardi principle

George Washington Law Review

Volumn 74, Issue 4, 2006, Pages 569-618

  Merrill, Thomas W ^a,b  

^a Och Spine at New York Presbyterian Hospitals   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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EID: 33749621780     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The competition for "most cited" is actually closer than I initially imagined based on academic commentary. Another Supreme Court case endorsing the idea, Vitarelli v. Seaton, 359 U.S. 535 (1959), is cited by the D.C. Circuit somewhat more frequently than Accardi (seventy to forty-seven cites as of March 2006). This is probably because federal employment cases have loomed large in the D.C. Circuit, see infra Part II, and Vitarelli involved a claim by a federal employee. Among courts overall, however, Accardi has been more cited than Vitarelli (664 to 549 cites as of March 2006).
2. See infra Part I.
3. The articles I have found most valuable are Joshua I. Schwartz, The Irresistible Force Meets the Immovable Object: Estoppel Remedies for an Agency's Violation of Its Own Regulations or Other Misconduct, 44 ADMIN. L. REV. 653 (1992),
4. and Peter Raven-Hansen, Regulatory Estoppel: When Agencies Break Their Own "Laws," 64 TEX. L. REV. 1 (1985).
5. See also Harold J. Krent, Reviewing Agency Action for Inconsistency with Prior Rules and Regulations, 72 CHI.-KENT L. REV. 1187 (1997);
6. Rodney A. Smolla, The Erosion of the Principle that the Government Must Follow Self-Imposed Rules, 52 FORDHAM L. REV. 472 (1984);
7. Raoul Berger, Do Regulations Really Bind Regulators?, 62 Nw. U. L. REV. 137 (1967);
8. Note, Violations by Agencies of Their Own Regulations, 87 HARV. L. REV. 629 (1974).
9. See U.S. CONST. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States . . . .").
10. Schwartz, supra note 3, at 669-70.
11. See United States v. Mead Corp., 533 U.S. 218, 221 (2001) (confining the deferential standard of review articulated in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to agency interpretations that have the "force of law").
12. The most prominent anticipation is United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155-56 (1923) ("assum[ing]," but finding inapplicable in that case, "that one under investigation with a view to deportation is legally entitled to insist upon the observance of rules promulgated by the Secretary pursuant to law").
13. Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U.S. 370 (1932).
14. Id. at 381.
15. Id. at 382.
16. Id.
17. Id.
18. Id. at 390.
19. Id. at 389.
20. Id.
21. Id. at 384-86. The understanding that rate prescription orders are legislative rules is carried forward by the Administrative Procedure Act ("APA"). See 5 U.S.C. § 551(4) (2000) (defining "rule" to mean "the whole or a part of an agency statement of general or particular applicability and future effect" which "includes the approval or prescription for the future of rates").
22. Arizona Grocery, 284 U.S. at 384-85.
23. Id. at 385.
24. Id. at 385-86.
25. Id. at 386.
26. Id. at 388.
27. Id.
28. See, e.g., Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 60.
29. See Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2099 (2004). The orthodox understanding is that Congress cannot delegate legislative power, but the force of this proposition has been reduced to nearly a nullity by defining legislative power for nondelegation purposes to mean the conferral of unconstrained discretion on an agency. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 475-76 (2001); cf. id. at 488-89 (Stevens, J., concurring) (finding no constitutional obstacle to delegation of legislative power).
30. For a more recent argument to the effect that the APA embodies the same restriction on retroactive legislative rulemaking through its definition of "rule," see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216 (1988) (Scalia, J., concurring).
31. See, e.g., United States v. Carlton, 512 U.S. 26, 35 (1994) (upholding retroactive tax); Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 719-20 (1984) (upholding retroactive pension liability).
32. See Milliken v. United States, 283 U.S. 15, 20-22 (1931) (upholding retroactive tax); Cooper v. United States, 280 U.S. 409, 411-12 (1930) (same); cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 394-95 (1798) (upholding against Ex Post Facto Clause challenge an explicitly retroactive act of the Connecticut legislature).
33. Bridges v. California, 314 U.S. 252, 275-76, 276 n.20 (1941).
34. See id. at 277-78 (overturning a state court contempt conviction of Bridges for sending a telegram to the Secretary of Labor threatening a strike during a trial of other labor activists); see also Bridges v. Wixon, 326 U.S. 135 (1945).
35. Bridges v. Wixon, 326 U.S. 135 (1945).
36. Id. at 137, 139-40.
37. Id. at 154-56.
38. Id. at 153. Justice Douglas cited as specific authority only a dictum in an earlier immigration case. Id. (citing United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1923)). Bilokumsky, in turn, cited no authority for its dictum. Bilokumsky, 263 U.S. at 155.
39. Wixon, 326 U.S. at 154.
40. Id. at 152.
41. Id. at 153-54.
42. Mathews v. Eldridge, 424 U.S. 319, 335, 339-49 (1976).
43. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 262 (1954).
44. Id.
45. Id. at 262-63.
46. Id. at 263.
47. Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 281 (1955). Accardi's unsavoryness consisted of alleged racketeering activity, not being a Communist. See id. at 283. Of the five individuals whose cases came before the Court during what I call the Accardi period, Accardi was the only one not accused of being a Communist. Bridges, Service, Vitarelli, and Yellin were all either accused of being Communists or of having communist associations.
48. Accardi, 347 U.S. at 264.
49. Id. at 263.
50. Id. at 268.
51. Id. at 267.
52. Id.
53. Id.
54. Indeed, Accardi seems to advance something of the opposite of the proposition endorsed in Arizona Grocery - that the subordinate is bound by restrictions that attach to the principal. Here, to the contrary, the Court seemed to suggest that because of the "nonstatutory" delegation from the Attorney General to the BIA, Accardi was entitled to more rights than he would have had if the Attorney General had reserved the decision to himself. See id. Subdelegation, at least by rule, creates new procedural entitlements, which will be enforced by courts against the subdelegator. See id. at 268.
55. Id.
56. Id.
57. After further proceedings on remand, the Supreme Court took the case again and upheld the district court's conclusion that the BIA had not been unduly influenced by the Attorney General's "list." Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 282-284 (1955).
58. Service v. Dulles, 354 U.S. 363 (1957).
59. Id. at 365, 372.
60. Vitarelli v. Seaton, 359 U.S. 535 (1959).
61. Id. at 536-37, 546.
62. Id. at 545.
63. Yellin v. United States, 374 U.S. 109 (1963).
64. Id. at 110.
65. Id. at 114-15, 124.
66. Vitarelli, 359 U.S. at 547 (Frankfurter, J., concurring in part and dissenting in part).
67. Id. at 546 (citing SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943)).
68. Cf. id. at 546-49 (omitting any reference to due process or habeas corpus).
69. See Yellin, 374 U.S. at 110-11.
70. Bridges v. Wixon, 326 U.S. 135, 151 & n.6 (1945), involved the consideration of hearsay evidence, arguably contrary to a regulation requiring that informant testimony be signed under oath; United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 264 (1953), involved a statement prejudging the case by the final decisionmaker; and Service v. Dulles, 354 U.S. 363, 366-68, 370-71 (1956), involved a reversal by the Secretary of State of a favorable decision by the Deputy Secretary of State, when the regulations authorized appeals to the Secretary only of unfavorable decisions.
71. Vitarelli, 359 U.S. at 538 n.1.
72. See Yellin, 374 U.S. at 121.
73. See also Peters v. Hobby, 349 U.S. 331, 337-38 (1955) (declining to reach constitutional issues presented by Loyalty Board determination because the Board had acted in a manner inconsistent with the Executive Order setting it up). Although Alexander Bickel did not discuss these cases in his famous discussion of the "passive virtues,"
74. see ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 111-98 (1962), they fit nicely into his thesis about the need for the Court to temporize in developing new constitutional doctrines - a theme which was formulated out of experience with the same era, see id. at 115-16. Clear statement rules, which refuse to enforce certain enactments that impinge on sensitive constitutional values absent a clear statement by Congress, perform a similar temporizing function.
75. See Thomas W. Merrill, Rescuing Federalism After Raich: The Case for Clear Statement Rules, 9 LEWIS & CLARK L. REV. 823, 826 (2005).
76. See generally JERRY L. MASHAW, GREED, CHAOS, & GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 6-25 (1997);
77. Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI-KENT L. REV. 1039 (1997);
78. Keith Werhan, The Neoclassical Revival in Administrative Law, 44 ADMIN. L. REV. 567, 568, 583-90 (1992).
79. United States v. Nixon, 418 U.S. 683 (1974).
80. Id. at 692.
81. Id. at 687-88.
82. Id. at 692.
83. Id. at 695-97.
84. Id. at 694.
85. Id. at 694-95.
86. Id. at 696.
87. See id. at 694-95.
88. United States v. Caceres, 440 U.S. 741 (1979).
89. Id. at 743.
90. Id.
91. Id. at 744-45, 749.
92. Id. at 749, 754.
93. Id. at 755.
94. Id. at 744 n.3. The Attorney General's memorandum, reproduced in the government's brief, cites no statutory delegation authorizing the policy. See Brief for the United States, United States v. Caceres, 440 U.S. 741 (1978) (No. 76-1309).
95. See Brief for the United States, United States v. Caceres, 440 U.S. 741 (1978) (No. 76-1309); Reply Brief of the United States, United States v. Caceres, 440 U.S. 741 (1978) (No. 76-1309), 1979 WL 213657.
96. Caceres, 440 U.S. at 749-50.
97. See supra notes 33-36 and accompanying text.
98. Caceres, 440 U.S. at 752-53.
99. Id. at 753 n.15.
100. Id. at 753, 754.
101. Id. at 754 & n.19. As Justice Marshall observed in his dissent, there is no suggestion in the Court's opinions in either Service or Vitarelli that it was relying on the APA. Id. at 758 n.1 (Marshall, J., dissenting).
102. Cf. id. at 741, 742-57 (majority opinion) (omitting any reference to United States v. Nixon, 418 U.S. 683 (1973)).
103. Cf. id. at 751 n.14 (noting that even if regulations are not required by the Constitution, "[i]t does not necessarily follow, . . . as a matter of either logic or law, that the agency had no duty to obey them").
104. Id. at 755-56.
105. Id. at 756.
106. Id. The argument anticipates warnings of later courts and commentators that overly rigid judicial insistence on agency observance of § 553 rulemaking procedures may result in agencies providing inadequate advice to the regulated community through more informal guidance documents. See Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803, 806, 808 (2001).
107. Caceres, 440 U.S. at 757-58, 758 n.1 (Marshall, J., dissenting).
108. Id. at 758.
109. Id. at 759.
110. Id. at 764.
111. In particular, Justice Marshall was correct in his assertion that the Court had not previously required a showing of reliance or prejudice in order to claim that an agency violation of its rules offends due process.
112. Id. at 757, 759 (referencing United States v. Nixon, 418 U.S. 683 (1973), twice without any explanation of how Nixon related to the Due Process Clause).
113. Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 80-82 (1978).
114. Id. at 92 n.8.
115. Id.
116. Caceres, 440 U.S. at 758 n.1 (Marshall, J., dissenting). Justice Marshall's characterization is probably inaccurate. The Rehnquist sentence was one of two reasons given for rejecting the Accardi claim in Horowitz, so it is probably best characterized as an alternative holding. See Horowitz, 435 U.S. at 92 n.8.
117. Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970).
118. Id. at 533-34, 534 n.1.
119. Id. at 538-39.
120. Id. at 537-38.
121. Id. at 539 (quoting NLRB v. Monsanto Chem. Co., 205 F.2d 763, 764 (8th Cir. 1953)).
122. Morton v. Ruiz, 415 U.S. 199 (1974).
123. Id. at 201.
124. See id. at 207, 212.
125. Id. at 233-34.
126. Id. at 234-36.
127. Id. at 235.
128. Id. at 236.
129. Id. at 235.
130. See, e.g., Lincoln v. Vigil, 508 U.S. 182, 199 (1993) (finding principle inapplicable because there was no violation of agency regulation); Webster v. Doe, 486 U.S. 592, 602 n.7 (1988) (finding principle inapplicable because lower court finding of agency compliance with regulations was not challenged); United States v. Fausto, 484 U.S. 439, 451 n.5 (1988) (holding that the Civil Service Reform Act precludes review of adverse personnel action in back pay action, including claim that agency failed to follow its own regulations); Lyng v. Payne, 476 U.S. 926. 942-43 (1986) (reversing judgment predicated on the Accardi principle on the ground that no such violation had occurred); Heckler v. Chaney, 470 U.S. 821, 836 (1985) (finding that agency policy statement couched in vague language and attached to a rule never adopted did not provide a basis for judicial review of agency action); EEOC v. Shell Oil Co., 466 U.S. 54, 66, 82 (1984) (finding principle inapplicable because agency complied with regulation): Mullins Coal Co. v. Dir., Office of Workers' Comp. Programs, 484 U.S. 135, 170 (1987) (Marshall, J., dissenting) (majority finds that agency has been faithful to regulation; dissent would invalidate action under Accardi); cf. Morris v. Gressette, 432 U.S. 491, 512-15 (1977) (Marshall, J., dissenting) (citing binding nature of Attorney General regulations issued under section 5 of the Voting Rights Act in support of argument that decision not to enforce should be reviewable).
131. INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996), contains language that could be characterized as an endorsement of the administrative common law conception of Accardi. The Court stated that an unexplained departure by an agency from past policy established "by rule or by settled course of adjudication" may be set aside as arbitrary and capricious under the APA. Id. at 32. But given that no such "rule" in the sense of regulation was involved in the case before the Court (as opposed to an understanding fixed by a settled course of adjudication), see id., it would be a stretch to characterize this as being addressed to the Accardi principle.
132. See, e.g., Schwartz, supra note 3, at 659 (referring to the one doctrine as an "irresistible force" and the other as an "immovable object").
133. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947).
134. Id. at 382.
135. Id.
136. Id. at 383, 386.
137. Justice Frankfurter described agency regulations filling out statutory details as an "inevitabl[e]" feature of "modern regulatory enactments," suggesting that their binding nature was a product of evolving perceptions of the needs of the administrative state. See id. at 384.
138. Id.
139. Id. at 384-85.
140. Id. at 385.
141. Schweiker v. Hanson, 450 U.S. 785 (1981).
142. Id. at 786.
143. Id.
144. Id.
145. Id. at 786-87.
146. Id. at 787-88.
147. Id. at 790.
148. Id. at 789.
149. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990).
150. Id. at 424-26.
151. Id. at 424.
152. U.S. CONST. art. I, § 9, cl. 7.
153. Richmond, 496 U.S. at 427-28.
154. Id. at 428.
155. Id. at 429.
156. I identified these cases by collecting all decisions of the D.C. Circuit citing to Accardi, Service, Vitarelli, Nixon, or Caceres, supplemented by additional decisions of that court identified in its own decisions or in commentaries. This generated a total of 251 cases. After examining each of these cases, I eliminated those in which the citation was for some proposition other than the Accardi principle, or in which the duty of an agency to comply with its regulations was not at issue in the case. The net result was ninety-two decisions. This undoubtedly understates the true number of D.C. Circuit decisions that consider whether an agency has violated its own regulations, since the court has almost certainly enforced the principle on occasion without citing any of the Supreme Court's decisions. But my ninety-two cases probably capture most of the decisions. Because the survey covers fifty-two years, it does not neatly divide into decades. I "solved" this problem by adding a year to the first and last decades. This is only minimally distorting: the first decade has only one extra case in the first year (1954) and the last decade has only two extra cases in the last year (2005).
157. I would add a word of caution about whether the imbalance in favor of procedural regulations is truly representative of the underlying universe of cases that involve the principle that agencies must follow their own regulations. Because every prominent Supreme Court decision invoking the Accardi principle (after Arizona Grocery) has involved procedural regulations, perhaps the parties and the court tend to cite the Supreme Court's decisions more often in cases involving procedural regulations. Thus, it is possible that there are a significant number of cases not captured by the survey where agencies are challenged for violating their substantive regulations and the court resolves the claim without citing the Accardi cases at all.
158. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (stating that agency interpretation of its own regulations is entitled to "controlling weight unless it is plainly erroneous or inconsistent with the regulation").
159. See, e.g., Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990); Union of Concerned Scientists v. Nuclear Regulatory Comm'n, 711 F.2d 370, 380-82 (D.C. Cir. 1983).
160. Thus, in Holden v. Finch, 446 F.2d 1311, 1312 (D.C. Cir. 1971), a sociologist had been hired by the Department of Health, Education and Welfare to work on program development but was terminated at the end of her probationary period. An internal memorandum stated that she was being terminated in part because she had permitted "her emotions on civil rights matters to cloud her judgment in performing her official duties." Id. at 1313 n.3. The issue on appeal was whether this action violated Hatch Act regulations that prohibited employment actions based on "political discrimination." The court acknowledged that the regulation had been interpreted by civil service officers to refer to discrimination based on partisan political affiliation or activity, but said, "With all the deference to be accorded an agency's construction of its own regulations, we do not think the words used compel this reading." Id. at 1316. It suggested that the regulation covered a wider sphere of speech "relating to public policies of an essentially political, albeit non-partisan, nature," and remanded for consideration whether the Department had violated its regulation, as thus reinterpreted. Id. at 1316-17.
161. in Graham v. Richmond, 272 F.2d 517 (D.C. Cir. 1959), for example, a merchant seaman declined to answer three questions on a form he was required to fill out and submit to the Coast Guard in order to verify his loyalty to the United States. Id. at 518-19. The Coast Guard considered his refusal to answer questions to mean he had failed to submit an application, and on this basis declined to certify him for service in the merchant marine. See id. at 518. The court assumed that the answers to the questions were relevant to ascertaining the seaman's loyalty. Id. at 521. But it pointed out that the regulations nowhere said in so many words that refusal to answer questions was ground for exclusion. Id. The court reasoned that the Coast Guard had acted in violation of its own regulations, as thus interpreted, and remanded on this basis. Id. at 521-22. Clearly, the court was invoking a kind of narrow literalism to override the agency's understanding of its regulation in order to force reconsideration of a program it found objectionable.
162. See, e.g., IMS, P.C. v. Alvarez, 129 F.3d 618, 621 (D.C. Cir. 1997).
163. See Auer v. Robbins, 519 U.S. 452, 461-63 (1997); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Lyng v. Payne, 476 U.S. 926, 939 (1986).
164. See, e.g., Frizelle v. Slater, 111 F.3d 172, 178 (D.C. Cir. 1997); Ortiz v. Sec'y of Def., 41 F.3d 738, 741 (D.C. Cir. 1994); Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528, 530, 538 (D.C. Cir. 1988); Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979); Geiger v. Brown, 419 F.2d 714, 715, 717-18 (D.C. Cir. 1969); Roberts v. Vance, 343 F.2d 236, 237, 239 (D.C. Cir. 1964); Coleman v. Brucker, 257 F.2d 661, 661-62 (D.C. Cir. 1958).
165. See Lopez v. FAA, 318 F.3d 242, 243, 247 (D.C. Cir. 2003); CC Distribs., Inc. v. United States, 883 F.2d 146, 148, 154 (D.C. Cir. 1989); Mass. Fair Share v. Law Enforcement Assistance Admin., 758 F.2d 708, 708-09, 711 (D.C. Cir. 1985); Nat'l Capital Airlines, Inc. v. CAB, 419 F.2d 668, 670, 675 (D.C. Cir. 1969); see also Cal. Human Dev. Corp. v. Brock, 762 F.2d 1044, 1045, 1049 (D.C. Cir. 1985).
166. See, e.g., Bufalino v. Kennedy, 322 F.2d 1016, 1018-19 (D.C. Cir. 1963); Hiroichi v. Brownell, 235 F.2d 536, 537, 539 (D.C. Cir. 1956); Miyagi v. Brownell, 227 F.2d 33, 34-35 (D.C. Cir. 1955).
167. See, e.g., CC Distribs., 883 F.2d at 148, 154 ; Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1534 (D.C. Cir. 1988); Harper v. Levi, 520 F.2d 53, 68-69 (D.C. Cir. 1975).
168. See Fried v. NTSB, 78 F.3d 688, 690 (D.C. Cir. 1996) ("Although courts have generally required an agency to follow its own regulations, . . . it is not clear that courts may review a claim of breached regulations when the regulations relate to a determination that has been 'committed to agency discretion by law.'" (quoting 5 U.S.C. § 701(a)(2))); Harrison v. Bowen, 815 F.2d 1505, 1517 (D.C. Cir. 1987) ("[A]n agency cannot create through its implementing regulations a right of review withheld by the underlying statute.").
169. Fornaro v. James, 416 F.3d 63, 66-69 (D.C. Cir. 2005); Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004).
170. See Parsons v. U.S. Dep't of the Air Force, 707 F.2d 1406, 1413 n.13 (1983); Nat'l Conservative Political Action Comm. v. FEC, 626 F.2d 953, 959 (D.C. Cir. 1980); Matlovich v. Sec'y of the Air Force, 591 F.2d 852, 857 (D.C. Cir. 1978).
171. Nat'l Conservative PAC, 626 F.2d at 959 (emphasis added).
172. Crosby-Bey v. District of Columbia, 786 F.2d 1182, 1186 (D.C. Cir. 1986).
173. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986).
174. Id. at 536-38.
175. Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528 (D.C. Cir. 1988).
176. See id. at 536-38.
177. Id. at 537.
178. Id. Missing from this formulation was any acknowledgment that Congress must first delegate authority to make legally binding rules to the agency. Cf. Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 558 (D.C. Cir. 1983) ("A rule can be legislative only if Congress has delegated legislative power to the agency and if the agency intended to use that power in promulgating the rule at issue.").
179. Vietnam Veterans, 843 F.2d at 528.
180. See, e.g., Chiron Corp. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 1999).
181. Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 225 (D.C. Cir. 1959).
182. Mass. Fair Share v. Law Enforcement Assistance Admin., 758 F.2d 708, 709, 711-12 (D.C. Cir. 1985).
183. Home Health Care, Inc. v. Heckler, 717 F.2d 587, 592 (D.C. Cir. 1983).
184. McKay v. Wahlenmaier, 226 F.2d 35, 41, 43 (D.C. Cir. 1955).
185. Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1534 (D.C. Cir. 1988).
186. Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1098-1100 (D.C. Cir. 1985).
187. United States v. Kember, 648 F.2d 1354, 1370 (D.C. Cir. 1980).
188. Union of Concerned Scientists v. Atomic Energy Comm'n, 499 F.2d 1069, 1082 (D.C. Cir. 1974).
189. Padula v. Webster, 822 F.2d 97, 98-99, 100-01 (D.C. Cir. 1987).
190. Doe v. Hampton, 566 F.2d 265, 284 (D.C. Cir. 1977).
191. Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003); see also Nat'l Small Shipments Traffic Conference, Inc. v. ICC, 725 F.2d 1442, 1449 (D.C. Cir. 1984).
192. Steenholdt, 314 F.3d at 634.
193. Id. (quotation omitted).
194. Id. at 636-37.
195. Id. at 640.
196. See, e.g., Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 CAL. L. REV. 1457, 1471 (2003);
197. Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 305-06 (2004).
198. For evidence specific to the D.C. Circuit, see Richard L. Revesz, Congressional Influence on Judicial Behavior? An Empirical Examination of Challenges to Agency Action in the D.C. Circuit, 76 N.Y.U. L. REV. 1100, 1106-09 (2001) (summarizing studies).
199. United States v. Caceres, 440 U.S. 741, 753-54 (1979) (paraphrasing 5 U.S.C. § 706(A) and quoting § 706(D)).
200. 5 U.S.C. § 553(b), (d)(1)-(2) (2000).
201. Cf. id. § 553(c), (d).
202. Id. § 551(4) (emphasis added).
203. Berger, supra note 3, at 149-50.
204. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (discussing three relevant factors: "the private interest that will be affected by the official action," "the risk of an erroneous deprivation of such interest," and "the Government's interest"); Goldberg v. Kelly, 397 U.S. 254, 267 (1970) ("The hearing must be at a meaningful time and in a meaningful manner." (quotation omitted)).
205. See, e.g., United States v. Nixon, 418 U.S. 683, 695 (1974) (rule binding on agency because it had "the force of law"); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954) (rule binding on agency because it had "the force and effect of law"); Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U.S. 370, 386 (1932) (rule binding on agency because it had "the force of a statute"); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536-38 (D.C. Cir. 1986) (legislative rules give rise to Accardi duty but policy statements do not); see also Schwartz, supra note 3, at 674-76; Raven-Hansen, supra note 3, at 15.
206. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977); Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000); Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 96 (D.C. Cir. 1997).
207. See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like - Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311, 1327-28 (1992).
208. See, e.g., 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.6 (4th ed. 2002).
209. For representative statements equating agency regulations to statutes, see, for example, Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 663 (1980) (Burger, C.J., concurring) (stating that when an agency adopts regulations pursuant to "legislative authority delegated by Congress," it "exercises the prerogatives of the legislature"); Sibbach v. Wilson & Co., 312 U.S. 1, 13 (1941) (stating that rules of procedure promulgated by the Supreme Court pursuant to delegation of authority from Congress have "the force of a federal statute"); Arizona Grocery, 284 U.S. at 386 (stating that when the Commission makes a legislative rule "it speaks as the legislature, and its pronouncement has the force of a statute"). See also Mistretta v. United States, 488 U.S. 361, 386 n.14 (1989) ("[R]ulemaking power originates in the Legislative Branch and becomes an executive function only when delegated by the Legislature to the Executive Branch."); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) ("Just as everyone is charged with knowledge of the United States Statutes at Large, Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents."); Atchison, Topeka & Santa Fe Ry. Co. v. Scarlett, 300 U.S. 471, 474 (1937).
210. On the "self-binding" nature of legislation, see, for example, H.L.A. HART, THE CONCEPT OF LAW 42-43 (2d ed. 1994). The duty of universal compliance is closely associated with the concept of legality that features prominently in the criminal law. The law must be uniformly binding on enactors and enforcers as well as subjects in order to "secure evenhandedness in the administration of justice and to eliminate the oppressive and arbitrary exercise of official discretion."
211. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 80 (1968);
212. see also John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 245 (1985).
213. Cf. Heckler v. Chaney, 470 U.S. 821, 837-38 (1985) (holding decision not to enforce law presumptively nonreviewable).
214. This echoes Cicero's adage that there is not one law for Rome, another for Athens, one law for today and another for tomorrow, but one and the same law, for all peoples and all times. ("Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtenebit."). The adage is quoted in Swift v. Tyson, 41 U.S. 1, 19 (1842), and Luke v. Lyde, (1759) 97 Eng. Rep. 614, 617 (K.B.), among other sources.
215. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952); Merrill, supra note 24, at 2109-14; Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 61 (1993).
216. The self-executing nature of legislative rules has often been cited as a basis for distinguishing legislative rules from other types of rules. See Ronald M. Levin, Mead and the Prospective Exercise of Discretion, 54 ADMIN. L. REV. 771, 797 (2002) ("[T]he traditionally recognized difference between a legislative rule and a nonlegislative rule is that the former settles the issues addressed in the rule, so that the agency no longer needs to be concerned about having to defend its position on those issues at the administrative level.");
217. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 931 (2004) ("[T]he important point is that an agency can base an adjudicative decision on the mere applicability of a (valid) legislative rule to the facts before it."). The self-executing quality of legislative rules is complicated in the United States because nearly all legislative rules in our system are only conditionally binding: they are binding only if the rule is valid. Statutes are only conditionally binding because some court may declare them unconstitutional. This does not take away their quality of providing a justification for the imposition of a sanction without reference to further authority. It only means that courts may decline to impose the sanction for a violation if they are convinced the statute is inconsistent with some higher rule. Legislative rules promulgated by administrative agencies are even more conditional. They are subject to challenge not only for constitutionality but also for inconsistency with authorizing legislation and for illegalities in the manner in which they were promulgated. But again, the possibility of invalidation for these reasons does not subtract from the conclusion that they provide a complete justification for imposition of a sanction without reference to other authority.
218. See supra text accompanying notes 61-62.
219. See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808-09 (1973) (plurality opinion).
220. Chairman Francis Walter of the House Judiciary Committee said of the APA that it "accepted the analytical terminology" whereby "we speak of . . . rule making whenever agencies are exercising legislative powers," and that legislative rules adopted by agencies are "binding upon the citizen exactly as statutes . . . are binding." Berger, supra note 3, at 137 nn.2 & 6 (quoting S. Doc. No. 79-248, at 355 (2d Sess. 1946)).
221. As the Court stated in Mead, an agency interpretation has the force of law "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27 (2000); see also Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 558 (D.C. Cir. 1983) ("A rule can be legislative only if Congress has delegated legislative power to the agency and if the agency intended to use that power in promulgating the rule at issue."). Some D.C. Circuit opinions have elided the requirement of delegated power, see, e.g., Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528 (D.C. Cir. 1988), discussed supra, notes 166-70; Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984), but this seems impossible to sustain after Mead.
222. See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); ICC v. Cincinnati, New Orleans & Tex. Pac. Ry. Co., 167 U.S. 479, 505 (1897).
223. As I am. See Merrill, supra note 24, at 2181.
224. See, Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1725 (2002).
225. See Gonzales v. Oregon, 126 S. Ct. 904, 916 (2006) (stating that to have the force of law, an agency rule "must be promulgated pursuant to authority Congress has delegated to the official"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress."); Chrysler, 441 U.S. at 302 ("The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes."); Batterton v. Francis, 432 U.S. 416, 425 (1977).
226. See supra text accompanying notes 20-27.
227. See supra text accompanying notes 124-39.
228. Gonzales, 126 S. Ct. at 916. In Gonzales, the Court concluded that the language and structure of the Controlled Substances Act did not delegate authority to the Attorney General to adopt binding rules construing the meaning of "legitimate medical purpose." Id. at 915-16. This concerns breadth or scope of the delegation. The Court did not focus on whether the statute conferred authority to make rules with the force of law; that is, on the nature of the delegated power. See id. at 916-17.
229. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 517-19 (2002) (discussing different Federal Communications Commission rulemaking grants).
230. See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 909-14 (2001) (discussing debate over whether courts should give Chevron deference to interpretations bearing on agency jurisdiction).
231. See Merrill & Watts, supra note 215, at 482-93.
232. One early case, ICC v. Cincinnati, New Orleans & Texas Pacific Railway Co., 167 U.S. 479, 505 (1897), can be read as imposing such a requirement. But more recent authority appears, if anything, to adopt the opposite presumption: that all rulemaking grants confer full power to make legislative rules. See Merrill & Watts, supra note 215, at 551-70.
233. See Merrill & Watts, supra note 215, at 581-82 (discussing difficulty of applying a clear statement rule today given extensive history disregarding such a requirement).
234. For the historical importance of this convention, see id. at 493-528.
235. Chrysler Corp. v. Brown, 441 U.S. 281, 308-12 (1979) (holding that the Housekeeping Act, 5 U.S.C. § 301, does not confer authority to make legislative rules).
236. See United States v. Caceres, 440 U.S. 741, 760-61 (1979) (Marshall, J., dissenting).
237. See, e.g., Chiron Corp. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 1999) ("The general test is whether the agency intended to bind itself with the pronouncement.").
238. Certain types of substantive legislative rules are exempt from notice-and-comment procedures, including those for which good cause exists to omit these procedures and certain types of rules associated with benefit and grant programs. See 5 U.S.C. § 553(b) (2000); United States v. Mead Corp., 533 U.S. 218, 244 (2001) (Scalia, J., dissenting).
239. 5 U.S.C. § 553(b)(A).
240. See Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528, 536-37 (D.C. Cir. 1988), discussed supra notes 166-70.
241. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).
242. Publication in the CFR is probative of agency intent because the statute establishing the Code specifies that it shall contain only documents "having general applicability and legal effect." 44 U.S.C. § 1510 (2000) (emphasis added); see Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539 (D.C. Cir. 1986).
243. See United States v. Caceres, 440 U.S. 714, 753-54 (1979).
244. 5 U.S.C. § 706.
245. See, e.g., Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 41 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-14 (1971).
246. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1028 (D.C. Cir. 2000) (stating that EPA cannot amend legislative regulations "without complying with the rulemaking procedures required by [the Act]"); Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 240 (D.C. Cir. 1992) (holding new rulemaking is required when an agency attempts to "supplement or amend" an existing legislative rule); Am. Fed'n of Gov't Employees, Local 3090 v. FLRA, 777 F.2d 751, 759 (D.C. Cir. 1985) (stating that agency cannot justify departure from regulation by giving a valid reason because this would allow agencies to repeal legislative rules without providing affected parties an opportunity to comment); see also Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 95 (D.C. Cir. 1997) (agency cannot change interpretation of legislative rule except through rulemaking); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997) (same).
247. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 205-06, 208 (1988) (striking down attempt by agency to respond to invalidated rule with a new rule that was made retroactive).
248. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953).
249. See supra note 155.
250. See Fried v. NTSB, 78 F.3d 668, 690 (D.C. Cir. 1996).
251. Fornaro v. James, 416 F.3d 63, 66-69 (D.C. Cir. 2005); Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004).
252. 5 U.S.C. § 701(a)(1), (2) (2000).
253. See Webster v. Doe, 486 U.S. 592, 599 (1988); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
254. 5 U.S.C. § 706.
255. See Nat'l Small Shipments Traffic Conference, Inc. v. ICC, 725 F.2d 1442, 1449 (D.C. Cir. 1984).
256. Berger, supra note 3, at 158-76.
257. Id. at 160.
258. Id. at 161.
259. Id. at 161-62.
260. Id. at 162.
261. See supra text accompanying notes 33-37, 49-52.
262. See United States v. Caceres, 440 U.S. 741, 749 (1979).
263. The first three elements follow from the text of the Clause. See U.S. CONST. amend. XIV, § 1. The first is the state action requirement, which appears expressly in the Fourteenth Amendment ("nor shall any State") and is implicit in the Fifth. The second proscribes the "deprivation" of entitlements and is also expressly stated in both Amendments. See Daniels v. Williams, 474 U.S. 327, 331-32 (1986). The third imposes a threshold determination that the deprivation be of an interest that can be described as "life, liberty or property," which is also supported by the text, although only in the modern era has the Court insisted that these concepts be given discrete definitions. See Bd. of Regents v. Roth, 408 U.S. 564, 569-72 (1972). The fourth element is not textual, but has long been recognized as an implicit limitation on the scope of procedural due process. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915). The fifth has roots in the text, but the understanding that the judiciary is uniquely competent to prescribe the procedures required to satisfy due process of law is also relatively modern. Cf. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (providing judicially created analysis of whether "administrative procedures . . . are constitutionally sufficient").
264. See, e.g., PETER L. STRAUSS ET AL., GELLHORN & BYSE'S ADMINISTRATIVE LAW 812 (10th ed. 2003).
265. Bd. of Regents v. Roth, 408 U.S. 564, 569-72 (1972).
266. The most recent case is Town of Castle Rock v. Gonzalez, 125 S. Ct. 2796, 2802, 2810 (2005) (holding that a promise by town to enforce restraining order was not a property right, and hence the town's failure to notify respondent that it would not enforce order did not violate due process).
267. Vitarelli v. Seaton, 359 U.S. 535, 539 (1959).
268. The Court has held that the "hallmark of property [at least for procedural due process purposes] . . . is an individual entitlement grounded in state law, which cannot be removed except for cause." Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (quotation omitted). See generally Thomas W. Merrill, The Landscape of Constitutional Property, 86 VA. L. REV. 885, 960-68 (2000).
269. The Court has explicitly so held in the liberty context, see Hewitt v. Helms, 459 U.S. 460, 471 (1983), and implicitly so held in the property context, see Bishop v. Wood, 426 U.S. 341, 347 (1976) (suggesting that ordinance found not to restrict reasons for termination of employees, but to qualify termination on observance of certain procedures, did not create a protected "property" right).
270. The Court has said that "'[p]roperty' cannot be defined by the procedures provided for its deprivation any more than can life or liberty." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). But this goes to the proposition that the substantive entitlement cannot be defined downwards by the package of procedures provided by legislatures or agencies. It does not foreclose the possibility that the question of what process is due can be expanded upwards by additional procedures prescribed by legislatures or agencies for the protection of recognized entitlements.
271. Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (setting forth cost-benefit test for judicial determination of appropriate package of procedures).
272. See Vitek v. Jones, 445 U.S. 480, 491 (1980) (stating that because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action").
273. See, Frank H. Easterbrook, Substance and Due Process, 1982 SUP. CT. REV. 85, 109-15.
274. See Raoul Berger, "Law of the Land" Reconsidered, 74 Nw. U. L. REV. 1 (1979). Berger notes that most colonial and state constitutions required that the government afford process in accordance with the "law of the land," a phrase borrowed from the Magna Carta. Id. at 4. The Magna Carta, in turn, "laid down that the laws bind the king." Id.
275. The Court has in fact increasingly applied Mathews in a spirit of deference to procedures established by politically accountable bodies. See, e.g., Weiss v. United States, 510 U.S. 163, 177 (1994) (declining to apply Mathews to military justice system); Medina v. California, 505 U.S. 437, 442-45 (1992) (declining to apply Mathews to criminal trial procedures); Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 320-26 (1985) (applying highly deferential version of Mathews to congressional procedures for contesting veterans' benefits).
276. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) ("The Court of Appeals thus erred in attributing significance to the fact that the prison regulations require a particular kind of hearing before the Administrator can exercise his unfettered discretion . . . . Process is not an end in itself.").
277. United States v. Caceres, 440 U.S. 741, 755-56 (1979).
278. See U.S. CONST. amend. V.
279. The high cost is reflected in the many exceptions to the exclusionary rule carved out by the courts. See, e.g., United States v. Leon, 468 U.S. 897, 922 (1984) ("good faith" exception). It is also reflected in decisions by Congress not to extend the exclusionary rule to recent enactments designed to protect privacy rights, such as the Electronic Communications Privacy Act, 18 U.S.C. § 2510 (2000), relying instead on civil damages and disciplinary action against federal employees who intentionally violate protections. Id. § 2511.
280. See supra text accompanying note 155.
281. This assessment may understate the degree to which courts set aside agency decisions for failing to comply with substantive legislative regulations. In part because the Accardi cases did not involve substantive regulations, and in part because the duty to comply with substantive regulations is uncontroversial, courts may not always refer to Accardi (or Service, Vitarelli, or Nixon) when they render decisions invalidating agency action for noncompliance with substantive regulations. Thus, it is possible that the Accardi principle has become identified in the judicial mind with niggling enforcement of agency procedural regulations, a project which has largely fallen out of favor. Meanwhile, the far more significant manifestation of the principle, reflected in judicial enforcement of substantive regulations, remains unlabeled and hence largely invisible, but nonetheless functions as an important bulwark of the rule of law in our system of government. Further research to measure the frequency of judicial enforcement of substantive agency regulations would be valuable in testing this hypothesis.
282. Agencies may want to induce reliance for a variety reasons, including persuading private entities to undertake financial obligations that will help prevent the collapse of other entities, participate in the development of new safety technology, participate in markets for tradeable pollution permits, invest in the construction of low-cost housing, invest in the purchase of government oil exploration leases, and so forth.
283. For some thoughts about this dimension of the problem, see Merrill, supra note 24, at 2139-59.
284. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
285. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 618 (1996) (separation of functions objection); Merrill & Hickman, supra note 216, at 900 (evasion of limits on Chevron).
286. Christensen v. Harris County, 529 U.S. 576 (2000).
287. United States v. Mead Corp., 533 U.S. 218 (2001).
288. See Christensen, 529 U.S. at 587; Mead, 533 U.S. at 227-28.
289. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
290. See Merrill & Hickman, supra note 216, at 833-37; Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807, 819-20 (2002).
291. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1443-44 (2005);
292. Adrian Vermeule, Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 347 (2003);
293. Eric Womack, Into the Third Era of Administrative Law: An Empirical Study of the Supreme Court's Retreat from Chevron Principles in United States v. Mead, 107 DICK. L. REV. 289, 317 (2002).
294. See Merrill, supra note 276, at 809-19.
295. Barnhart v. Walton, 535 U.S. 212, 221-22 (2002).
296. See Gonzales v. Oregon, 126 S. Ct. 904, 916 (2006); Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 125 S. Ct. 2688, 2699 (2005).