Deference and democracy

George Washington Law Review

Volumn 75, Issue 4, 2007, Pages 761-803

  Bressman, Lisa Schultz ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 34548702657     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (224)

1. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2373-74 (2001);
2. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 102-03 (1994);
3. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 91-99 (1985);
4. Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1256 (1989);
5. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2583 (2006).
6. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
7. Id. at 842-43.
8. Id. (articulating the test);
9. id. at 844 (using the word "reasonable").
10. Id. at 865.
11. See sources at supra note 1.
12. Chevron, 467 U.S. at 865-66.
13. United States v. Mead Corp., 533 U.S. 218, 231 (2001).
14. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006) (describing Step Zero as "the initial inquiry into whether the Chevron framework applies at all").
15. Mead, 533 U.S. at 230-31.
16. Id. (Scalia, J., dissenting) ("There is no necessary connection between the formality of procedure and the power of the entity administering the procedure to resolve authoritatively questions of law.");
17. see also David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 234 ("The Court's approach, when measured against the values of accountability and discipline, denies deference to actions that have earned it and gives deference to actions that do not deserve it.").
18. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
19. Id. at 161.
20. Id. at 160. The Court decided Brown & Williamson during the same Term as Christensen v. Harris County, in which the Court anticipated Mead. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) ("Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law - do not warrant Chevron-style deference.").
21. Gonzales v. Oregon, 126 S. Ct. 904 (2006).
22. Id. at 925.
23. See id. at 918.
24. Id. at 921 (quotation omitted).
25. See Brown & Williamson, 529 U.S. at 159-60.
26. See Gonzales, 126 S. Ct. at 921.
27. This Article shares the sympathies of two short pieces that appeared as this Article was in its final stages. See generally William N. Eskridge, Jr. & Kevin S. Schwartz, Chevron and Agency Norm-Entrepreneurship, 115 YALE L.J. 2623 (2006);
28. Peter L. Strauss, Within Marbury: The Importance of Judicial Limits on the Executive's Power to Say What the Law Is, 116 YALE L.J. POCKET PART 59 (2006). Professors Eskridge and Schwartz defend the result in Gonzales, arguing that administrations may not take positions that prevent decision making by "more qualified agencies and even by the democratic process itself." Eskridge & Schwartz, supra, at 2628, 2632. The authors view this case against a particular normative backdrop: agencies should undertake debate on social issues, and administrations should not disrupt debate or shift debate from its proper forum.
29. See id. at 2625-27.
30. Professor Strauss argues that Gonzales is correct because it ensures that "someone other than the executive tend[s] the fence around executive authority and take[s] care that the authority is exercised in a manner subject to public participation and control." Strauss, supra, at 62. He argues that Brown & Williamson is correct because it preserves a role for judicial review and "the restraint it can offer against shorter-term political departures from our culture of legality." Id. at 67. Professor Strauss contends that Congress was unlikely to have delegated the power that the agency asserted, and that the case functions as a "nondelegation canon[]," requiring "fresh congressional authority" for cigarette restrictions.
31. Id. at 62, 67.
32. The Court has examined so-called extraordinary questions in other cases that do not involve the particular political problem that, this Article argues, Brown & Williamson and Gonzales present. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) ("[W]e find it implausible that Congress would give to EPA through these modest words the power to determine whether implementation costs should moderate national air quality standards.");
33. MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) ("It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion - and even more unlikely that it would achieve that through such a subtle devise as permission to 'modify' rate-filing requirements."). This Article does not purport to address all extraordinary or jurisdictional question cases. Importantly, the Article suggests that such cases, despite common language, might yield different explanations for their holdings that are consistent with a multitextured view of the Chevron framework.
34. Of course, Chevron itself always has provided courts with latitude to invalidate interpretations with which the judges disagree, and not only through the recently announced exceptions. Justice Scalia conceded long ago that he may find clarity in almost any ambiguous language. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521 ("One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt.").
35. See Gonzales, 126 S. Ct. at 910;
36. Brown & Williamson, 529 U.S. at 123.
37. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
38. Id. at 857-59.
39. Id.
40. See Robert W. Hahn & Gordon L. Hester, Where Did All the Markets Go? An Analysis of EPA's Emissions Trading Program, 6 YALE J. ON REG. 109, 109 (1989);
41. R. Liroff, Reforming Air Pollution Regulation: The Toil and Trouble of EPA's Bubble, in ENVIRONMENTAL LAW AND POLICY 388, 388 (Peter S. Menell & Richard Stewart eds., 1994).
42. Chevron, 467 U.S. at 842-43.
43. Id. at 845.
44. Id. at 865-66.
45. Id. at 865.
46. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). Justice O'Connor wrote the opinion, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. Id. at 123.
47. Id. at 127.
48. Id. (citation and internal quotation marks omitted).
49. Id. (quotation omitted).
50. Id. (citations and internal quotation marks omitted).
51. Id.
52. Id. at 127-28.
53. Id.
54. Id. (quotation omitted).
55. Id. at 160-61.
56. Id. at 137.
57. id. (citing 7 U.S.C. § 1311(a) (2000)).
58. Id. at 137-38 (collecting statutes).
59. id. at 137-39. The Court found that the FDA could not argue in the alternative that tobacco products are "safe" and fit to remain on the market.
60. Id. at 139-40. The FDA had argued that a ban would be "dangerous" for those who already were addicted and who therefore would suffer extreme withdrawal.
61. Id. at 139. But, the Court said, the statute requires a particular determination of "safety" - namely, that therapeutic benefits of cigarettes outweigh the health risks.
62. Id. at 140. The FDA did not and could not make this determination precisely because it had determined that cigarettes have no therapeutic benefits.
63. Id.
64. Id. at 143.
65. Id. at 144.
66. Id.
67. Id. at 155.
68. Id. at 157.
69. Id. at 156.
70. Id.
71. Id. at 160-61.
72. See id. at 159.
73. Id.
74. Id.
75. Id. at 160.
76. Id. at 161 (quotation omitted).
77. Id. (Breyer, J., dissenting). Justice Breyer was joined by Justices Stevens, Souter, and Ginsburg. Id.;
78. see also United States v. Mead Corp., 533 U.S. 218, 239 (2001) (Scalia, J., dissenting).
79. Justice Breyer argued that cigarettes fit within the FDCA. Brown & Williamson, 529 U.S. at 161 (Breyer, J., dissenting). First, he contended that cigarettes have pharmacological effects that manufacturers "intend." Id. at 162. Second, Justice Breyer noted that the regulation of cigarettes advances the basic purpose of the statute: to protect public health.
80. Id. Finally, he argued that subsequently enacted statutes could not impeach this interpretation because the statutes are neither inconsistent with FDA jurisdiction nor a reliable indication of what Congress may have intended when passing the FDCA.
81. See id. at 182.
82. Id. at 190.
83. Id.
84. See id. at 190-91.
85. Gonzales v. Oregon, 126 S. Ct. 904 (2006). Justice Kennedy wrote the opinion, joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer. Id. at 910.
86. Id. at 913;
87. see Oregon Death with Dignity Act, OR. REV. STAT. §§127.800-.897 (2005).
88. Gonzales, 126 S. Ct. at 913 (quotation omitted).
89. Id. at 913-14 (interpreting 21 U.S.C. § 824(a)(4) (2000 & Supp. 2005)).
90. Id.
91. Id. at 914.
92. Id. at 922.
93. Id.; Auer v. Robbins, 519 U.S. 452, 461-63 (1997) (holding that the Court must defer to a Secretary's interpretation of an agency's own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation").
94. Gonzales, 126 S. Ct. at 915-16.
95. Id. at 916;
96. see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
97. Gonzales, 126 S. Ct. at 916 ("All would agree, we should think, that the statutory phrase 'legitimate medical purpose' is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense.").
98. Id. at 916, 918.
99. id. at 917.
100. 21 U.S.C. § 821 (2000 & Supp. 2005).
101. Gonzales, 126 S. Ct. at 921.
102. Id. (quotation omitted).
103. Id. (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001)).
104. Id. at 920-21.
105. Id. at 920.
106. Id. at 911 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).
107. Id. at 921 (quotation omitted).
108. Id. at 921-22.
109. Id. at 922.
110. Id.
111. Id. at 921-22.
112. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (holding that a Court should follow an agency's rule if the agency can persuade the Court that it is the best interpretation).
113. Gonzales, 126 S. Ct. at 922-25.
114. Id. at 923.
115. Id. at 924.
116. Id. at 925.
117. Id. at 926-39 (Scalia, J., dissenting). Justice Scalia was joined by Chief Justice Roberts and Justice Thomas.
118. Id. Justice Thomas also filed a separate dissent, arguing that the Court was bound by its decision in Gonzales v. Raich, 545 U.S. 1 (2005), to conclude that the CSA sweeps broadly into areas of traditional state control. Gonzales, 126 S. Ct. at 939-41 (Thomas, J., dissenting).
119. Gonzales, 126 S. Ct. at 930 (Scalia, J., dissenting).
120. Id. at 931.
121. Id. at 931-33.
122. Id. at 931 (first alteration in original, emphasis added) (quoting Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. 56,608 (Nov. 9, 2001)).
123. Id. Justice Scalia contended that the notion that Congress does not "hide elephants in mouseholes" has no relevance here because it applies only to interpretations that undermine the central features of the regulatory scheme, whereas this interpretation enhances the Attorney General's ability to address drug abuse.
124. Id. He also underscored that the Court's decision did not render Chevron inapplicable due to the format of the ruling or the absence of notice-and-comment procedures.
125. Id. at 929.
126. Id.
127. See, e.g., Sunstein, Chevron Step Zero, supra note 9, at 193-94 (arguing that Brown & Williamson increases "uncertainty and judicial policymaking without promoting important countervailing values" and that it should yield to a rule that gives "policymaking authority to institutions that are likely to have the virtues of specialized competence and political accountability").
128. This Article brackets wholesale objections to Chevron premised either on separation of powers or institutional considerations. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 456 (1989) (expressing separation of powers concerns);
129. Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE L.J. 676, 679 (2006) (arguing that Chevron should operate as a voting rule, requiring a majority of justices or judges to uphold an interpretation, rather than one that requires courts to assess the reasonableness of agency interpretations).
130. See Gonzales, 126 S. Ct. at 921-22;
131. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2001).
132. See Brown & Williamson, 529 U.S. at 133.
133. See Gonzales, 126 S. Ct. at 916.
134. See Brown & Williamson, 529 U.S. at 126-27.
135. See Gonzales, 126 S. Ct. at 913-14.
136. See id. at 921-22;
137. Brown & Williamson, 529 U.S. at 160.
138. See Thomas W. Merrill & Kristen E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 845 (2001) (stating that Brown & Williamson reflects "a reverse presumption about congressional silence");
139. see also Michael Herz, Reading the Clean Air Act After Brown & Williamson, 31 ENVTL. L. REP. 10,151, 10,155 (2001) ("Chevron deference hinges on a policymaking delegation, and while the requisite delegation can sometimes be found simply through Congress' use of vague language, such an implicit delegation will be found only for minor, interstitial questions.").
140. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 224 (2000) (arguing that the Court's approach in Brown & Williamson can be understood as narrowing the statute to avoid a nondelegation problem);
141. Sunstein, Chevron Step Zero, supra note 9, at 245 ("For those who are enthusiastic about the nondelegation doctrine, this background principle [from Brown & Williamson] will have considerable appeal, above all because it requires Congress, rather than agencies, to decide critical questions of policy . . . .");
142. see also Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1244 (2002) (arguing that the Court's approach in Brown & Williamson can be understood as reasserting the judiciary's role in statutory construction, Chevron notwithstanding).
143. See Manning, The Nondelegation Doctrine, supra note 111, at 271.
144. See, e.g., Timothy K. Armstrong, Chevron Deference and Agency Self-interest, 13 CORNELL J.L. & PUB. POL'Y 203, 250-62 (2004) (arguing that the Court's approach in Brown & Williamson can be understood as invalidating an interpretation that would have expanded the statute to advance the agency's self-interest).
145. See id. at 261.
146. See id.
147. See, e.g.. Manning, The Nondelegation Doctrine, supra note 111, at 261-67 (arguing that the nondelegation principle evident in Brown & Williamson does not best serve congressional intent);
148. Sunstein, Chevron Step Zero, supra note 9, at 246 (arguing that a principle that seeks to prevent agencies from expanding their own authority would introduce "an unhealthy status quo bias into administrative law").
149. See Gonzales v. Oregon, 126 S. Ct. 904, 921-22 (2006);
150. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2001).
151. See Massachusetts v. EPA, 415 F.3d 50, 58 (D.C. Cir. 2005), rev'd, 127 S. Ct. 1438 (2007).
152. See Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 39 (1983).
153. See Merrill & Hickman, Chevron's Domain, supra note 110, at 845 (stating that "Brown & Williamson adopted the functional equivalent of an exception to Chevron deference in cases that involve ambiguities about the scope of an agency's jurisdiction").
154. Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J., concurring in the judgment).
155. Brown & Williamson, 529 U.S. at 160-61.
156. Gonzales v. Oregon, 126 S. Ct. 904, 921 (2006) (quotation omitted).
157. Id.
158. See Brown & Williamson, 529 U.S. at 159-61.
159. See id. at 137-39.
160. See id.
161. See id. at 127.
162. See id.
163. See id. at 137-39.
164. Gonzales v. Oregon, 126 S. Ct. 904, 921 (2006).
165. See id. at 911 (discussing the issuance of the Interpretive Rule).
166. See Brown & Williamson, 529 U.S. at 126-27.
167. See Gonzales, 126 S. Ct. at 913-14.
168. See id.
169. Einer Elhauge has defended the result in Brown & Williamson, arguing that the Court was giving effect to current enactable congressional preferences, as it should when reviewing agency interpretations of ambiguous provisions. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2148 (2002) (arguing that the "requirement that the agency make a 'reasonable policy choice' given competing political interests . . . suggests courts should deny deference if, even though not openly admitted by the agency, its interpretations plainly conflict with current enactable policy preferences"). This Article's argument is not grounded on a theory of statutory construction that directs courts to interpret ambiguous statutes so as to implement current enactable congressional preferences. Instead, the goal is to recognize that courts should prevent administrations from issuing interpretations in an arbitrary or undemocratic manner on the basis of the administration's own preferences without regard to broader popular (including congressional) interests. The argument is closer to one calling on courts to balance executive and legislative branch preferences.
170. See William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 46 (1994) (noting that the Court "can be expected to fragment (often contentiously) if Congress and the President take opposing sides on a separation-of-powers issue");
171. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1266 (2006) (describing Brown & Williamson as consistent with the view that "the president's mandate is essentially on par with that of Congress").
172. See JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE 152 (1997);
173. Kagan, supra note 1, at 2331;
174. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 477 (1989).
175. See, e.g., Stephen G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 58-70 (1995) (endorsing presidential control of agency decision making because it promotes accountability);
176. Kagan, supra note 1, at 2331-46 (same);
177. Lessig & Sunstein, supra note 1, at 105-06 (arguing that presidential control of agency decision making increases political accountability);
178. Mashaw, supra note 1, at 95 (same);
179. Pierce, supra note 1, at 1239, 1251-54 (arguing that the Constitution is premised on the belief that government should act as an agent for the people).
180. See Sunstein, Interpreting Statutes, supra note 137, at 477 (arguing that "[c]ourts should construe statutes so that those who are politically accountable and highly visible will make regulatory decisions").
181. See MASHAW, supra note 137, at 152.
182. See, e.g., Kagan, supra note 1, at 2336 ("Take the President out of the equation and what remains are individuals and entities with a far more tenuous connection to national majoritarian preferences and interests: administrative officials selected by the President himself; staff of the permanent bureaucracy; leaders of interest groups, which whether labeled 'special' or 'public' represent select and often small constituencies; and members of congressional committees and subcommittees almost guarantees by their composition and associated incentive structure to be unrepresentative of national interests.").
183. See Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. REV. 557, 617-19 (2003) (describing reasons why election does not ensure that the President will reflect popular preferences on specific issues).
184. See FDA v. Brown & Williamson Tobacco, Corp., 529 U.S. 120, 137-39 (2000).
185. See id.
186. See id.
187. See Gonzales v. Oregon, 126 S. Ct. 904, 924 (2006).
188. See id. at 921-22.
189. See Kagan, supra note 1, at 2340-41 (arguing that presidential involvement in agency decision making may energize the administrative state).
190. See Robert A. Kagan & William P. Nelson, The Politics of Tobacco Regulation in the United States, in REGULATING TOBACCO 13 (Robert L. Rabin & Stephen D. Sugarman eds., 2001) ("The tobacco industry is large, extremely profitable, and politically well organized. It can and does contribute lavishly to the political campaigns of individual legislators and parties.").
191. See Brown & Williamson, 529 U.S. at 128.
192. See, e.g., Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (stating that "inquiry into the mental processes of administrative decision makers is usually to be avoided").
193. U.S. CONST, art. I, § 7;
194. see Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 1017-18 (1997) (arguing that the requirements of bicameralism and presentment ensure that any law enacted receives a high degree of political support).
195. See INS v. Chadha, 462 U.S. 919, 948-49, 958-59 (1983);
196. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 519-23 (2003) (arguing that the legislative veto may facilitate faction).
197. See William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 542-613 (1992) (arguing that the legislative veto restores the balance of power between Congress and the President);
198. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 187-90 (1994) (contending that given the increase in presidential power, the legislative veto restores checks and balances).
199. See Chadha, 462 U.S. at 946-51, 956 (invalidating the legislative veto as a violation of the requirements of bicameralism and presentment).
200. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 5 (2001) ("In our constitutional system, it is widely assumed that federal judges must act as Congress's faithful agents.");
201. Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 VA. L. REV. 1295, 1313 (1990) ("Traditional democratic theory suggests that the court interpreting a statute must act as the faithful agent of the legislature's intent.").
202. See Barron & Kagan, supra note 11, at 234 (arguing that the presumptions of congressional intent are "proxies");
203. Gersen & Vermeule, supra note 103, at 689 (agreeing with the view of some Justices and commentators who have recognized that the presumption of congressional intent underlying Chevron is a "fiction");
204. Merrill & Hickman, supra note 110, at 871-72 (noting that the presumption of congressional intent underlying Chevron deference "has been described by even its strongest defender [Justice Scalia] as 'fictional'").
205. See Elizabeth Garrett, Legislating Chevron, 101 MICH. L. REV. 2637, 2638-39 (2003) (arguing that Chevron is premised on judicially determined values).
206. See Merrill & Hickman, supra note 110, at 836 (arguing that Chevron is premised on congressional intent);
207. Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 587 (2005) (same);
208. cf. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 470 (2002) (arguing that Congress once under-stood statutory grants of lawmaking authority to confer on agencies authority to act with the force of law, but recognizing that this convention is now lost).
209. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1485 (2005) (arguing that under Mead, "courts frequently must infer congressional delegation from agency practice").
210. Cf. Gersen & Vermeule, supra note 103, at 697-98 (noting that it may be cognitively difficult for judges to separate these steps).
211. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
212. Scholars have argued that the FDCA was ambiguous, and that the Court went to great lengths to conclude otherwise. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1257 (2001);
213. Mark Seidenfeld, An Apology for Administrative Law in the Contracting State, 28 FLA. ST. U. L. REV. 215, 223-24 (2000).
214. See Gonzales v. Oregon, 126 S. Ct. 904, 921 (2006).
215. See Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 1005-07 (2007) (demonstrating that Chevron Step Two incorporates the requirement of reasoned decision making).
216. See, e.g., Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983) (remanding agency rule rescission for dismissing too quickly the data concerning the safety benefits of automatic seatbelts).
217. A possible difference is that the Court in both Brown & Williamson and Gonzales invalidated the agency interpretations, see supra Part I, rather than remanding those interpretations to the agency for reconsideration, as Step Two envisions. See, e.g., AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 392, 397 (1999) (remanding an unreasonable rule to the agency for reconsideration). Some interpretations are not susceptible to agency repair on remand, such as those that extend the reach of the statute to a particular product or conduct. Either the interpretation is permissible or it is not.
218. See Gonzales, 126 S. Ct. at 921;
219. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
220. See William W. Buzbee, The One-Congress Fiction in Statutory Construction, 149 U. PA. L. REV. 171, 194-98 (2000) (arguing that the Court in Brown & Williamson, when consulting later-enacted statutes to interpret an earlier one, presumed that a single Congress produces legislation).
221. See Brown & Williamson, 529 U.S. at 132 ("The meaning-or ambiguity-of certain words or phrases may only become evident when placed in context."). On dynamic statutory construction,
222. see generally T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 56-61 (1988), articulating a theory under which courts update statutes based on current legal and social context, and William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1480-81, 1484 (1987), articulating the same theory.
223. See Elhauge, supra note 136, at 2039 (arguing that members of Congress, past and present, would prefer judicial interpretations of statutes in a manner that tracks the current Congress's preferences);
224. Peter L. Strauss, Statutes That Are Not Static-The Case of the APA, 14 J. CONTEMP. LEGAL ISSUES 767, 801 (2005) (arguing that later-enacted statutes sometimes indicate the current preferences of Congress).