The continuum of deference: Supreme court treatment of agency statutory interpretations from Chevron to Hamdan

Georgetown Law Journal

Volumn 96, Issue 4, 2008, Pages 1083-1226

  Eskridge Jr , William N ^a   Baer, Lauren E ^a,b  

^a YALE UNIVERSITY   (United States)

^b Yale Law School ^*

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[No Author keywords available]

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EID: 44349102361     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (452)

1. Pub. L. No. 95-95, § 172(b)(6), 91 Stat. 685 (1977) (codified at 42 U.S.C. § 7502(b)(6) (2000)).
2. The genesis of the "bubble concept" is based upon conversations with attorneys at the former Shea & Gardner. Professor Eskridge was an associate at that firm from 1979 to 1982.
3. ASARCO Inc. v. Envtl. Prot. Agency [EPA], 578 F.2d 319, 329-30 (D.C. Cir. 1978) (ruling that the bubble concept was required for programs seeking to preserve existing air quality, but inappropriate in the Clean Air Act program mandating improvement in air quality), followed in Natural Res. Def. Council [NRDC] v. Gorsuch, 685 F.2d 718, 728 (D.C. Cir. 1982).
4. 467 U.S. 837 (1984).
5. On the Bator brief and its background, see Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Precedent, in ADMINISTRATIVE LAW STORIES 398, 413-14 (Peter L. Strauss ed., 2006). See also Ala. Power Co. v. Costle, 636 F.2d 323, 397-401 (D.C. Cir. 1979) (Wilkey, J.) (arguing for the need for courts to allow the EPA regulatory flexibility so that costs are not disproportionate to benefits).
6. Although liberal Justice Brennan voted to affirm the D.C. Circuit, his liberal colleague Thurgood Marshall was absent due to illness. After voting with Brennan to affirm, Justice O'Connor also dropped out of the case because of a potential conflict of interest after her father died. See Memorandum from O'Connor to the Conference, June 14, 1984, in Papers of Harry A. Blackmun, Library of Congress, Madison Building, Box 397, Folder 7 [hereinafter Blackmun Papers]. Also out of the case was Justice Rehnquist, who would probably have been a voice for deference. (As O'Connor mentioned during Conference, the bubble concept was helpful to smelters and other ailing industries in Arizona, her and Rehnquist's home state. See Conference Notes for Chevron, in Blackmun Papers, supra).
7. Conference Notes for Chevron, March 2, 1984, in Blackmun Papers, supra note 6, Box 397, Folder 7.
8. John Paul Stevens, In Memoriam: Byron R. White, 116 HARV. L. REV. 1, 1-2 (2002) (Justice Stevens's account of the Chevron assignment).
9. Chevron, 467 U.S. at 842.
10. Id. at 843. The neat two-step formula was similar to less structured formulations the Court had previously announced. See, e.g., Beth Israel Hosp. v. Nat'l Labor Relations Bd. [NLRB], 437 U.S. 483, 500-01 (1978) (labor law); Nat'l Muffler Dealers Ass'n v. United States, 440 U.S. 472, 476-77 (1978) (tax); Batterton v. Francis, 432 U.S. 416, 425 (1977) (safety-net programs).
11. Chevron, 467 U.S. at 844.
12. Id. at 844-45, 864-65. This reflected Bator's insight into the New Deal era justification of deference because of agency expertise. See United States v. Shimer, 367 U.S. 374, 383 (1961).
13. Chevron, 467 U.S. at 865.
14. Id. at 865-66.
15. Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 284, 312 (1986).
16. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521;
17. see also Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. L.J. AM. U. 269, 277 (1988).
18. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 373 (1986).
19. 480 U.S. 421 (1987); see Thomas W. Merrill, Confessions of a Chevron Apostate, ADMIN. L. NEWS, Winter 1994, at 1, 14 (confessing that the Solicitor General's Office pressed Chevron hard at the D.C. Circuit, but less so at the Supreme Court, lest the Court trim back on its reasoning).
20. Cardoza-Fonseca, 480 U.S. at 448; Letter from Justice Stevens to Justice Blackmun, February 9, 1987, in Blackmun Papers, supra note 6, Box 466, Folder 6 (rejecting Blackmun's suggestion to give more substance to the statutory "well-founded fear" standard, because there was no consensus among the majority as to what that substance would be).
21. See, e.g., Interstate Commerce Comm'n [ICC] v. Texas, 479 U.S. 450, 457 (1987) (following Chevron to allow ICC discretion in exempting carriers from state taxes); Luckhard v. Reed, 481 U.S. 368, 383 (1987) (Blackmun, J., concurring) (applying Chevron to allow the Department of Health and Human Services [HHS] broad discretion to impose inclusive definition of "income" for purposes of the Aid to Families with Dependent Children [AFDC] program); Chem. Mfrs. v. NRDC, 470 U.S. 116, 135 (1985) (following Chevron to allow the EPA to consider plant-specific factors and to allow variances from pretreatment regulations for pollution sources). In all of these cases, the record of the Conference discussions suggests that a broad understanding of deference was the critical factor in the votes of key Justices. See Blackmun Papers, supra note 6, Box 416, Folder 1 (Chemical Manufacturers); id. Box 470, Folder 4 (ICC v. Texas); id. Box 471, Folder 8 (Luckhard).
22. 533 U.S. 218 (2001).
23. Id. at 226-27, 230-33 (2001), followed in Gonzales v. Oregon, 546 U.S. 243, 259 (2006); Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005). Mead's understanding reflects a rough scholarly consensus as well. See, e.g., Administrative Conference of the United States, Recommendation 89-5, Achieving Judicial Acceptance of Agency Statutory Interpretations, 54 Fed. Reg. 28,972-73 (July 10, 1989); Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 YALE J. ON REG. 1, 4 (1990);
24. Thomas W. Merrill, Rethinking Article I, Section I: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2171 (2004);
25. Henry Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 6 (1983) (presciently articulating this view on the eve of Chevron).
26. Mead, 533 U.S. at 227-28 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). The Mead Court remanded the case to the lower court to evaluate the agency's ruling in light of the Skidmore factors - "the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140.
27. Mead, 533 U.S. at 239-61 (Scalia, J., dissenting).
28. 546 U.S. 243 (2006) (The Oregon Aid-in-Dying Case).
29. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945), followed and elaborated on in Auer v. Robbins, 519 U.S. 452 (1997). Justice Scalia's Oregon dissent therefore terms this "Auer deference."
30. 126 S. Ct. 2749 (2006).
31. Id. at 2789-98.
32. Id. at 2823 (Thomas, J., joined by Scalia, J., dissenting).
33. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (upholding the President's action against Curtiss-Wright for selling guns to Bolivia, assertedly in violation of a congressional embargo statute). The holding of the case is supportable under ordinary principles, but Justice Sutherland's opinion went further and has long been controversial. See, e.g., David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 YALE L.J. 467, 496-97 (1946).
34. See, e.g., Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 189 (1992);
35. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 834-35 (2001).
36. See, e.g., Kristin E. Hickman & Mathew D. Krueger, In Search of the "Modern" Skidmore Standard, 107 COLUM. L. REV. 1235, 1271-80 (2007) (circuit court application of Skidmore);
37. Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 1 (1998) (circuit court application of Chevron);
38. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 987 (D.C. Circuit's application of Chevron in selected periods after the decision).
39. Although not empirical, a valuable study of Mead among the lower courts is Lisa Schultz Bressman, How Mead Has Muddied Judicial Review of Agency Action, 58 VAND. L. REV. 1441 (2005).
40. Our methodology was simple: We read every case decided between 1984 and 2006 in which an agency interpretation of a statute was at issue and in which the Supreme Court produced a published opinion; if the United States filed a brief interpreting the statute or the Court's opinion (or even a brief in the case) revealed a publicly available agency interpretation on point, we included that case. Statutory interpretation cases where mere was no agency interpretation on point were not included. Many of the statutory cases not included were constructions of the federal habeas statute as applied to state prisoners (hence, there was no United States brief unless requested by the Court), but other cases not included were cases where there was, surprisingly, no agency position available. See, e.g., Chan v. Korean Air Lines, 490 U.S. 122, 123-24, 126 n.2 (1989) (providing important interpretation of Warsaw Convention, but without any executive input). Conversely, we included a number of constitutional cases where the Court narrowly construed a statute at the suggestion of the Department of Justice. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988).
41. The dataset is available on-line through The Georgetown Law Journal. See The Georgetown Law Journal, http://www.georgetownlawjournal.com/extras/ 96.4/ (last visited Mar. 18, 2008). An Appendix to this Article reproduces our Codebook, which explains our methodology.
42. See the discussion above for a description of Skidmore, Seminole Rock, and Curtiss-Wright. Beth Israel is a category we have devised for post-Chevron Supreme Court opinions that announce a special deference regime (often in the field of labor) and apply a reasonableness analysis similar to that in Chevron, but without citing Chevron (or a Chevron-following case), instead citing to and following a pre-Chevron deference case like Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978).
43. Cf. Schuck & Elliott, supra note 32, at 1057 (finding that the courts of appeals not only cited Chevron repeatedly, but also that agency interpretations prevailed more often).
44. See Schuck & Elliott, supra note 32 (examining appeals court cases involving "judicial review of federal administrative action" in four discrete six-month periods in 1965, 1974-75, 1984, and 1985, and one two-month period in 1988); Eric R. 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, 290 (2002) (examining federal court cases in the six months directly following the Supreme Court decision in Mead and occasionally comparing them to federal court cases in the year prior to Mead).
45. See Richard Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1721 (1997) (examining all cases decided by the D.C. Circuit between 1970 and 1996 that challenged the health and safety decisions of twenty federal agencies);
46. see also Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI L. REV. 823, 825 (2006) (examining published appeals court decisions from 1990-2004 in which federal judges reviewed interpretations of law by the ERA and NLRB).
47. See Kerr, supra note 32, at 4 (examining every application of the Chevron doctrine in the courts of appeals during 1995 and 1996); Miles & Sunstein, supra note 38, at 825 (examining eighty-four Supreme Court cases applying the Chevron doctrine, sixty-nine of which cite Chevron directly).
48. For an excellent model that provided us with guidance, see James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 59-63 (2005). Like earlier studies of Supreme Court cases, ours cannot make strong assertions about some issues because of selection biases - namely, the likelihood that the cases available for Supreme Court review will change over time in response to the Court's deference jurisprudence.
49. For example, Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 981-84 (1991), reported that agency interpretations prevailed at the Supreme Court 75% of the time in the three years before Chevron, but only 70% in the six years after Chevron. This interesting finding, similar to those that we report, does not mean that Chevron failed to induce greater deference among lower court judges or even Supreme Court Justices, because the post-Chevron cases might have been skewed in favor of challengers, with agency victories going largely unappealed and government attorneys emboldened to take appeals in weaker cases than they had done pre-Chevron.
50. This number does not include the Chevron decision itself, which was also coded but is not included in our statistical analysis.
51. Coding of all 1014 cases was done by one author, thereby eliminating the coding inconsistencies that often arise when multiple coders are used. As a further safeguard, the other author then cross-checked all coding for internal consistency and errors.
52. See infra Appendix 1: Codebook, "Agency Interpretation," Note. The Note identifies our litmus test for each area of law represented in our dataset.
53. See id., "Deference Regime Invoked," Note .
54. We also examine the extent to which these variables interact with each other - that is, whether the deference regime invoked has an impact on how frequently agency interpretations are upheld, and whether the Court's desire to uphold certain agency interpretations may influence the deference regime it chooses to invoke.
55. In the time frame examined in this study (1983 to 2005) the number of agency-interpretation cases reviewed by the Supreme Court dropped from a high of 66 cases the term after Chevron was decided, to 38 cases in the 2005 term. The precise breakdown of cases, by term, is as follows: 1983 term, after and including Chevron, 17 cases; 1984 term, 66 cases; 1985 term, 56 cases; 1986 term, 57 cases; 1987 term, 57 cases; 1988 term, 49 cases; 1989 term, 47 cases; 1990 term, 51 cases; 1991 term, 46 cases; 1992 term, 62 cases; 1993 term, 41 cases; 1994 term, 35 cases; 1995 term, 36 cases; 1996 term, 41 cases; 1997 term, 49 cases; 1998 term, 43 cases; 1999 term, 31 cases; 2000 term, 36 cases; 2001 term, 42 cases; 2002 term, 38 cases; 2003 term, 42 cases; 2004 term, 35 cases; and 2005 term, 38 cases.
56. One would expect that the perception of a Chevron Revolution would have discouraged litigants from challenging some legally vulnerable agency interpretations that would have been challenged under a regime perceived to be more skeptical, while agencies would be encouraged to defend a broader array of interpretations they might have abandoned under the previous regime.
57. If, on the one hand, the Court is establishing formalist tests for deference, but, on the other hand, applying them infrequently and inconsistently, then we might expect appeals court practices to be similarly haphazard. At the very least, we would need to know this before being able to analyze whether deference practice at the appeals court level is "normal" or "deviant."
58. The tables in this Article employ the terms and coding schema explicated in our Codebook, which is attached as an appendix.
59. For earlier studies finding high agency win rates at the Supreme Court level, see Martha Anne Humphries & Donald R. Songer, Law and Politics in Judicial Oversight of Federal Administrative Agencies, 61 J. POL. 207, 208-10 (1999);
60. Reginald S. Sheehan, Federal Agencies and the Supreme Court: An Analysis of Litigation Outcomes, 1953-1988, 20 AM. POL. SCI. Q. 478, 480-82 (1992).
61. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).
62. Cf. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (President acting under direct statutory authorization has maximum authority; President acting contrary to statutory directive has minimal authority; President acting in a "twilight zone" with neither statutory authority nor contrary directive has authority to act commensurate with his inherent powers and whatever powers Congress has implicitly accorded him in the past).
63. For example, it helps explain the Supreme Court's decision in Dames & Moore v. Regan, 453 U.S. 654 (1981). In that case, the Court held that an executive agreement suspending hundreds of lawsuits against the Islamic Republic of Iran and creating an international claims tribunal to handle them did not violate the Foreign Sovereign Immunity Act of 1976 (FSIA). Id. at 686. The Court grounded this dynamic interpretation of the FSIA in the President's inherent Article II powers, and in Congress's acquiescence to the exercise of these powers, even in the face of the FSIA. Id. at 680-83.
64. 484 U.S. 518, 530, 534 (1988); accord Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993) (invoking President's foreign affairs power as one reason to defer to his interpretation of immigration laws); CIA v. Sims, 471 U.S. 159, 169-71 (1985) (invoking executive national security authority as reason to defer).
65. Egan, 484 U.S. at 529.
66. In addition to Egan, the cases are as follows: Jama v. Immigration & Customs Enforcement [ICE], 543 U.S. 335, 348 (2005) (strongly deferring to executive branch construction of immigration law); Cheney v. U.S. Dist. Court, 542 U.S. 367, 385-86 (2004) (deferring to high executive branch official resisting discovery on national security grounds); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 375-76 (2000) (international trade); Immigration & Naturalization Serv. [INS] v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (immigration); Reno v. Flores, 507 U.S. 292, 309, 312 n.8 (1993) (immigration); Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993) (immigration and protection of national borders); Carlucci v. Doe, 488 U.S. 93 (1988) (national security, invoking and following Egan); INS v. Abudu, 485 U.S. 94, 110 (1988) (immigration).
67. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2825 (2006) (Thomas, J., dissenting) (invoking Curtiss-Wright super-deference to support the President's military commissions); see also Webster v. Doe, 486 U.S. 592, 614-15 (1988) (Scalia, J., dissenting) (invoking Curtiss-Wright super-deference to argue for no judicial review of executive dismissals of law enforcement personnel).
68. See, e.g., Dames & Moore, 453 U.S. at 654; discussion supra note 53.
69. 504 U.S. 655, 669, 670 (1992) (interpreting Mexican-American extradition treaty to allow international kidnapping by executive department without extradition duty).
70. See id. at 670 (Stevens, J., dissenting) (powerfully analytical dissent critiquing the Chief Justice's legal arguments).
71. See, e.g., Ker v. Illinois, 119 U.S. 436, 440 (1886) (ruling that executive kidnapping of criminal defendants abroad and bringing them to this country for trial is not unconstitutional).
72. See, e.g., Ministry of Def. for Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006) (sovereign immunity); Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 401 (2003) (executive agreement preemption); Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 75-76 (1993) (state tax on international businesses); INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992) (immigration); Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998) (death on the high seas).
73. 325 U.S. 410, 414 (1945).
74. 519 U.S. 452, 461 (1997) (upholding a Department of Labor interpretation of its own regulatory concept embodied in Fair Labor Standards Act regulations).
75. 512 U.S. 504, 512 (1994) (upholding HHS's interpretation of its own complicated Medicare regulations).
76. 529 U.S. 861 (2000).
77. 80 Stat. 718 (1966) (codified at 15 U.S.C. § 1381 et seq.) (repealed 1994).
78. Geier, 529 U.S. at 886.
79. Id. at 874-75.
80. Id. at 874-81.
81. Id. at 883-84.
82. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting); see Christensen v. Harris County, 529 U.S. 576, 587-88 (2000) (Thomas, J.) (declining to apply Auer [Seminole Rock] deference when the regulation itself is clear and only entitled to Skidmore deference); Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 ADMIN. L.J. AM. U. 1, 4-12 (1996) (arguing that current Supreme Court deference toward agency interpretations goes against the spirit of the Administrative Procedure Act (APA) by allowing agencies effectively to create their own law);
83. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretation of Agency Rules, 96 COLUM. L. REV. 612 (1996) (arguing that current Supreme Court deference toward agency interpretations, which allows the agencies to create their own law, raises a separation of powers problem).
84. For cases where the Court explicitly declined to accord Seminole Rock deference because the agency "interpretation" had changed, see Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 356 (2000); Comm'r v. Schleier, 515 U.S. 323, 334 n.7 (1995); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988); and Huffman v. Western Nuclear, Inc., 486 U.S. 663, 673 n.9 (1988). In Gonzales v. Oregon, the Court rejected the government's argument that the Ashcroft Directive was entitled to Seminole Rock deference on the odd ground that the regulation simply "parroted" the statute. 549 U.S. 243, 256-61 (2006); cf. id. at 277-81 (Scalia, J., dissenting) (wittily critiquing the majority's "antiparroting canon"). A stronger ground for rejection would have been that because Attorney General Ashcroft's interpretation was adopted thirty years after the regulation in question and had been previously considered and rejected, Seminole Rock was not appropriate to apply.
85. Auciello Iron Works, Inc., 317 N.L.R.B. 364 (1995). There was a technical issue not settled by the Board's precedents, namely, whether Auciello lost the ability to disavow because it had all the facts concerning union membership at hand before it signed the contract. The Board ruled that that conduct was in bad faith.
86. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996).
87. Id. at 787-88.
88. See, e.g., id. at 788 (citing Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-01 (1978)). The Auciello Court also invoked NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990), another NLRB deference case which ignored Chevron and relied on NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), another pre-Chevron NLRB deference case similar to Beth Israel .
89. Beth Israel, 437 U.S. at 500 (citing Weingarten, 420 U.S. at 266-67; NLRB v. Iron Workers, 434 U.S. 335, 350 (1978)).
90. Id. at 501 (emphasis added); accord Weingarten, 420 U.S. at 265-66 (deference even when Board is changing interpretations).
91. See, e.g., Batterton v. Francis, 432 U.S. 416, 425 (1977) (when Congress delegates lawmaking authority to an agency, that agency, and not the courts, has "primary responsibility" for interpreting the statute, and the "reviewing court is not free to set aside [agency] regulations simply because it would have interpreted the statute in a different manner"); see also Nat'l Muffler Dealers Ass'n v. United States, 440 U.S. 472 (1979). The Court in National Muffler deferred to a Treasury Department interpretation of the charitable contribution provision of the tax code. When the relevant statutory term is undefined or unclear, "this Court customarily defers to the regulation, which, 'if found to "implement the congressional mandate in some reasonable manner," must be upheld.'" Id. at 476 (quoting United States v. Cartwright, 411 U.S. 546, 550 (1973), in turn quoting United States v. Correll, 389 U.S. 299, 307 (1967)).
92. See Beth Israel, 437 U.S. at 500-01; accord Nat'l Muffler, 440 U.S. at 477.
93. Nat'l Muffler, 440 U.S. at 477 (quoting Correll, 389 U.S. at 307; United States v. Moore, 95 U.S. 760, 763 (1878)) (internal citations omitted).
94. See Duro v. Reina, 495 U.S. 676, 691-92 (1990) (deferring to Solicitor of Department of the Interior opinions for this reason).
95. See, e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-88 (1996) (applying Beth Israel deference).
96. See, e.g., Reno v. Flores, 507 U.S. 292, 309, 312 n.8 (1993) (invoking the "reasonable foundation" deference rule of Carlson v. Landon, 342 U.S. 524 (1952)); INS v. Doherty, 502 U.S. 314, 323 (1992) (respecting Attorney General's "broad discretion" whether to re-open immigration proceedings (quoting INS v. Rios-Pineda, 471 U.S. 444, 449(1985))).
97. See, e.g., Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006) (following Kolovrat v. Oregon, 366 U.S. 187, 194 (1961), which accords "great weight" to executive branch treaty interpretations); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (applying similar deferential approach of Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)).
98. See, e.g., Edwards v. United States, 523 U.S. 511 (1998); United States v. LaBonte, 520 U.S. 751, 757 (1997) (dodging the Chevron issue and giving general deference to the Commission); Melendez v. United States, 518 U.S. 120, 129-30 (1996) (applying an unspecified but deferential mode of review to the Sentencing Commission's interpretation of its Guidelines); United States v. Dunnigan, 507 U.S. 87 (1993).
99. See, e.g., Honig v. Doe, 484 U.S. 305, 326 (1988) (adopting an approach of deference toward Department of Education's interpretations of relevant statute because it is the "agency charged with monitoring and enforcing the statute" (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)).
100. See, e.g., New York v. Fed. Energy Regulatory Comm'n [FERC], 535 U.S. 1, 28 (2002) (energy); Basic Inc. v. Levinson, 485 U.S. 224 (1988) (securities); City of New York v. Fed. Commc'ns Comm'n [FCC], 486 U.S. 57, 64-67 (1988) (communications).
101. Batterton v. Francis, 432 U.S. 416, 425 (1977) (when Congress delegates lawmaking authority to an agency, that agency and not the courts has "primary responsibility" for interpreting the statute, and the "reviewing court is not free to set aside [agency] regulations simply because it would have interpreted the statute in a different manner").
102. See, e.g., Ellen P. Aprill, Muffled Chevron: Judicial Review of Tax Regulations, 3 FLA. TAX REV. 51, 56-57 (1996);
103. Linda Galler, Emerging Standards for Judicial Review of IRS Revenue Rulings, 72 B.U. L. REV. 841, 849 & n.53 (1992).
104. 440 U.S. 472 (1979). The leading case is Cottage Savings Ass'n v. Comm'r, 499 U.S. 554 (1991), following the deference regime of National Muffler Dealers. Id. at 560-61. See also United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219(2001) (also following Muffler). Cottage Savings has, in turn, been followed and applied in Boeing Co. v. United States, 537 U.S. 437, 448 (2003) and Atlantic Mutual Ins. Co. v. Comm'r, 523 U.S. 382 (1998).
105. Nat'l Muffler, 440 U.S. at 476; accord United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982).
106. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), followed and quoted in United States v. Mead Corp., 533 U.S. 218, 235 (2001); see Hickman & Krueger, supra note 32, at 1281-91 (engaging in a thorough examination of the Skidmore factors, as expanded in Mead and applied post-Mead by the courts of appeals).
107. Mead, 533 U.S. at 241, 250 (Scalia, J., dissenting).
108. The rationale for permitting Skidmore deference when there has not been a congressional delegation of lawmaking authority is grounded in agencies' expertise, broad investigative powers, and understanding of national issues and also in a desire to create uniformity in administration. Id. at 234 (majority opinion).
109. For empirical evidence that Skidmore remains an important deference approach among the courts of appeals, see Hickman & Krueger, supra note 32, at 1259-81.
110. 524 U.S. 624 (1998).
111. Id. at 646.
112. Id. at 642-45 (pre-ADA agency interpretation of the Rehabilitation Act to include HIV-infection); id. at 647 (agency interpretations of the ADA).
113. See id. at 642.
114. 10 U.S.C. § 836(a)-(b). Even though the statute explicitly authorized the President to issue procedural regulations, neither the Court nor Justice Thomas even mentioned Chevron as a possible deference regime. This strikes us as anomalous.
115. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2791 & n.51 (2006) (Stevens, J., for the Court); id. at 2811 (Kennedy, J., concurring in part).
116. See id. at 2778 n.31, 2779 n.32 (Stevens, J., for the Court).
117. See, e.g., Texaco, Inc. v. Dagher, 547 U.S. 1 (2006).
118. See, e.g., Leegin Creative Leather Prods. v. PSKS, Inc., 127 S. Ct. 2705, 2721 (2007) (overruling Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), and closely following the reasoning suggested by the Department of Justice's amicus brief).
119. See, e.g., Jackson v. Birmingham Bd. of Educ, 544 U.S. 167, 179 (2005); Penn. State Police v. Suders, 542 U.S. 129, 142-43 (2004); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 799-800, 806, 809 (1998).
120. In 314 cases, the "agency" interpretation of the statute was presented only in the Solicitor General's amicus brief.
121. Charged with representing the interests of the United States (often a creditor in bankruptcy), the Trustee collects and analyzes bankruptcy filings and adjudications. As the top official, the Trustee is quite knowledgeable about the policy as well as legal issues. Our generalizations about the Solicitor General's handling of bankruptcy cases comes from conversations with leading appellate counsel in bankruptcy cases.
122. 520 U.S. 953 (1997).
123. The majority and concurring opinions in In re Hoskins, 102 F.3d 311 (7th Cir. 1996), are particularly illuminating analyses of bankruptcy policy. See Rash, 520 U.S. at 966-67 (Stevens, J., dissenting).
124. See, e.g., Lamie v. United States Trustee, 540 U.S. 526 (2004); Till v. SCS Credit Corp., 541 U.S. 465 (2004); Dewsnup v. Timm, 502 U.S. 410, 417 (1992).
125. Pub. L. No. 93406, 88 Stat. 829 (1974) (codified in scattered sections of 29 U.S.C. and the Internal Revenue Code).
126. See, e.g., Varity Corp. v. Howe, 516 U.S. 489 (1996).
127. We add this important qualification: The United States does have a bias, for it is often a creditor in bankruptcy. Hence, it may be no coincidence that its valuation rule in Rash was the most pro-creditor rule, and one that no less a staunch capitalist as Frank Easterbrook maintains will grant a windfall to undersecured creditors (like banks) at the expense of unsecured creditors (like small businesses and personal creditors). Hoskins, 102 F.3d at 320 (Easterbrook, J., concurring).
128. United States v. Mead, 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)) (internal quotation marks omitted).
129. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
130. 546 U.S. 243 (2006).
131. Id. at 263-64 (expressing reluctance to read the law to vest discretion in the Department of Justice to expand criminal liability). For lucid explications of the rule of lenity and strong support for it, see, for example, United States v. Aguilar, 515 U.S. 593 (1995) and United States v. Granderson, 511 U.S. 39 (1994).
132. Oregon, 546 U.S. at 268-69 (expressing reluctance to vest the Department of Justice with discretion to apply the statute in the teeth of constitutional problems with denying any and all aid-in-dying). On the avoidance canon, see generally NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); John Copeland Nagle, Delaware & Hudson Revisited, 72 NOTRE DAME L. REV. 1495 (1997);
133. Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
134. In matters of substantive criminal law, the agency is almost always aligned against the criminal defendant; the rare exceptions are when the Solicitor General confesses error at the Supreme Court level. In matters of criminal sentencing, however, the agency (the Sentencing Commission, not the Department of Justice) is often on the side of the criminal defendant. See, e.g., Neal v. United States, 516 U.S. 284 (1996).
135. In our coding schema, we did not code cases as "anti-deference" if the constitutional problem did not cut against the agency interpretation or if the Court did not mention the rule of lenity or the avoidance canon.
136. 483 U.S. 350 (1987).
137. See 18 U.S.C. § 1341 (2000 & Supp. 2005).
138. McNally, 483 U.S. at 360-61.
139. Id. at 360.
140. William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation, Practical Reasoning, 42 STAN. L. REV. 321 (1990).
141. For an early empirical test confirming the multi-factored approach we describe, see Nicholas S. Zeppos, The Use of Authority in Statutory
142. 532 U.S. 661 (2001).
143. 42 U.S.C. § 12182(a) (2000) (prohibiting discrimination on the basis of disability in public accommodations); id. § 12181(7) (defining "public accommodation").
144. PGA Tour, 532 U.S. at 690-91.
145. Brief for Petitioner at 8 n.10, PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (No. 00-24).
146. PGA Tour, 532 U.S. at 676-88.
147. Id. at 674-76 (legislative history and purpose); id. at 689 n.51 (statutory structure).
148. Id. at 688 (citing a committee report and Supreme Court precedent).
149. See generally LINCOLN CAPLAN, THE TENTH JUSTICE (1988).
150. See generally Linda R. Cohen & Matthew L. Spitzer, The Government Litigant Advantage-Implications for the Law, 28 FLA. ST. U. L. REV. 391 (2000).
151. It is also possible that there is often a generally deferential attitude among the Justices and their law clerks toward Solicitor General briefs, which may permeate the Court's docket, affecting many of the cases we have coded as "no deference." We have not tried to test or unpack the effects of this generally deferential attitude in this Article.
152. Note that proving this hypothesis would require an empirical study of deference at the Court of Appeals level, an object which is beyond the scope of this Article. However, we note that the best recent empirical study of deference among courts of appeals found much lower win rates in Skidmore deference cases (60.4%) than we found at the Supreme Court level (73.5%). Compare Hickman & Krueger, supra note 32, at 1275-79, with Table 1, supra.
153. Respectively, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); Gonzales v. Oregon, 546 U.S. 243, 259 (2006); and McNally v. United States, 483 U.S. 350 (1987).
154. See Merrill, supra note 40, at 981-84 (1991) (reporting that agency interpretations prevailed at the Supreme Court 75% of the time in the three years before Chevron, while only 70% of the time in the six years after Chevron).
155. See supra notes 84-93 and accompanying text.
156. 432 U.S. 416 (1977).
157. Id. at 425.
158. Id.; see also United States v. O'Hagan, 521 U.S. 642, 673 (1997) (citing both Chevron and Batterton for the proposition in text).
159. See, e.g., Hickman & Krueger, supra note 32, at 1271-79 (Skidmore applied liberally by lower courts and generating considerable deference to agencies); Kerr, supra note 32, at 30-31 (Chevron applied liberally by lower courts and generating considerable deference to agencies).
160. Donald Elliott, a former General Counsel of the Environmental Protection Agency (EPA), says that Chevron allowed the EPA to be more aggressive in pursuing a policy-oriented approach to environmental statutes, at the expense of a legalistic approach, with some confidence that the D.C. Circuit would go along with the agency's interpretations. See E. Donald Elliot, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Environmental Law, 16 VILL. ENVTL. L.J. 1, 11-12 (2005).
161. The Justices might not seriously consider most of the cases where the agency has prevailed, so that lower courts will absorb the Chevron message that agencies should usually receive the benefit of the doubt. If the Justices disproportionately homed in on petitions from the Solicitor General, appealing cases where a shaky (but under Chevron possibly winning) agency view has not prevailed (as in Oregon), and on petitions from private parties with strong challenges to shaky agency views that have prevailed in the lower courts (as in Hamdan), the few Chevron-eligible cases that the Court chooses to take would represent a relatively weaker sample of cases than those that are at most Skidmore-eligible.
162. For example, in both Oregon and Hamdan, the Court declined to apply the Chevron framework, notwithstanding strong arguments that the Attorney General (Oregon) and the President (Hamdan) were acting pursuant to congressional delegations of lawmaking authority. That refusal to apply Chevron may have been a product of the Court's skepticism about the executive views in those cases.
163. For example, Mead rested in part on the Court's characterization of what it had been doing with Chevron since 1984. In Oregon, the debate between the majority and dissenting opinions involved dueling characterizations of how the Court had been applying Chevron.
164. See United States v. Mead Corp., 533 U.S. 218, 227-31 & n.11 (2001), closely following (and citing) Merrill & Hickman, supra note 31. The Court followed and reaffirmed the Mead formulation in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-75 (2006); Gonzales v. Oregon, 546 U.S. 243, 255-75 (2006); and Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005).
165. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 526-27 (2002).
166. Id. at 528-45, 570-75. For example, the Supreme Court has assumed that the National Labor Relations Board's adjudicative orders constitute delegated law, see NLRB v. Health Care & Retirement Corp. of Am., 511 U.S. 571 (1994), but such orders clearly do not under this formula (which everyone would have known in 1935, when Congress passed the NLRA), because the winning party needs to go to court to have the order enforced. See Merrill & Watts, supra note 151, at 511.
167. See Merrill & Watts, supra note 151, at 545-70 (the convention was "erased" by federal judges); id. at 577-78 (a reasonable legislative counsel would, after the judicial erasure, have opined that a general rulemaking or adjudication grant was a "lawmaking" delegation). I asked Professor Merrill: If you had to choose a year by which even congressional drafters would have surely ignored the Merrill-Watts formula and followed a broader approach, what year would you choose? Conceding that an earlier date could be defensible, Merrill felt that the formula would have clearly been obsolete by 1973.
168. Nat'l Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir. 1973) (Skelly Wright, J.); see Merrill & Watts, supra note 151, at 545-70 (providing a broader context for the Petroleum Refiners revolution in the meaning of these general rulemaking grants).
169. Unless the Court for some reason found a technical exception, such as an agency rulemaking that was actually undertaken in response to litigation or the agency was acting in some way beyond the apparent authorization. (We are assuming that the Justices were not following the Merrill-Watts formula.)
170. See, e.g., Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119 (2005) (declining Chevron deference for a proposed agency regulation, but agreeing with Solicitor General amicus on most matters); Wis. Dep't of Health & Family Servs. v. Blumer, 534 U.S. 473 (2002) (declining Chevron deference to HHS's proposed rule and its manual); Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 340 (1999) (refusing Chevron deference because agency had been so inconsistent over time).
171. See, e.g., Cal. Dental Ass'n v. FTC, 526 U.S. 756, 765-66 (1999).
172. See, e.g., Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 248 (2005) (deferring to INS under foreign affairs super-deference approach, citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)); Blumer, 534 U.S. at 473 (deferring to HHS under Skidmore rather than Chevron); Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996) (deferring to NLRB under Beth Israel, even though Chevron would have been appropriate as well).
173. Please note that we did not code cases for Mead's dictum that there can be an "implicit" lawmaking delegation to agencies. Even after re-reading Mead countless times, we were able to make no more sense of its standard than was Justice Scalia, who accurately predicted that Mead would produce chaos among lower court judges. See United States v. Mead Corp., 533 U.S. 218, 245 (2001) (Scalia, J., dissenting).
174. 501 U.S. 680, 696-706 (1991). But see id. at 707-08 (Scalia, J., dissenting) (arguing that the Court cannot invoke Chevron under these circumstances).
175. 502 U.S. 491, 508-09 (1992); see id. at 511-14 (Stevens, J., dissenting) (also applying strong deference to the Department's interpretation). The Court followed Presley in Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 483 (1997).
176. Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381-82 (1988) (Scalia, J., concurring in the judgment), responding to id. at 386-87 (Brennan, J., dissenting) (arguing that no deference should be afforded agency interpretations of "the scope of their jurisdiction").
177. Id. at 381 (Scalia, J., concurring in the judgment).
178. Are some pain-ameliorating drugs prone to cause early death, such that they should be included in the regulation? Or should they be regulated in a more subtle way? What penalties should be used against doctors violating the Attorney General's directive?
179. See, e.g., Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 1006-17 (1999); Merrill & Hickman, supra note 31, at 909-11.
180. But see Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 594-95 (2005) (agreeing with the Scalia position).
181. 529 U.S. 120 (2000).
182. Id. at 142-43.
183. Id. at 159-60.
184. Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (quoting Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001) (Scalia, J.)). In Oregon, Justice Scalia responded that Congress made a clear judgment that controlled substances cannot be used for harmful purposes, such as he considered "assisted suicide" to be. Id. at 285-86 (Scalia, J., dissenting).
185. We took a practical view of what agency interpretations are "longstanding." We included agency positions publicly taken contemporaneously with or soon after the enactment of the relevant statute but by no means limited the category to such situations. Thus, we included current agency interpretations that no one in the case denied were consistent over time; federal prosecutors' interpretations of criminal statutes that had been advanced (successfully in most cases) in previous reported cases; and even amicus brief positions that were supported by prior administrative guideposts, including informal ones such as letters, publications, and me like.
186. Note that the Court actually applies the Chevron two-step in eighty-five cases. However, in one of those cases the Court used Curtiss-Wright deference as the actual basis for its decision. Hence, we use eighty-four as the baseline for the number of Chevron cases in our study.
187. See Oregon, 546 U.S. at 265-66.
188. Compare, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 293-94 (1988) (Kennedy, J., delivering the judgment of the Court) (affirming two agency rules and abrogating a third, based upon the statutory text), with id. at 300-09 (Brennan, J., concurring in part and dissenting in part) (agreeing with Kennedy on two regulations, based upon detailed examination of legislative history).
189. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 862-64 (1984).
190. 501 U.S. 597 (1991).
191. Id. at 609-14.
192. See Conference Notes for Mortier, in Blackmun Papers, supra note 6, Box 573, Folder 1.
193. Mortier, 501 U.S. at 616-23 (Scalia, J., concurring in the judgment). Ironically, Justice Scalia joined Justice O'Connor's opinion in Brown & Williamson, where the Court's rejection of the FDA's interpretation rested upon twenty-five pages of lavish attention to legislative history of various tobacco-regulatory statutes. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 130-55 (2000) (examining committee hearing testimony and colloquy, as well as committee reports, for tobacco-regulatory statutes). Further, Justice Scalia has in some prominent Chevron cases cited and relied on legislative history himself in arguing Step 1 issues. See, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 726-32 (1995) (Scalia, J., dissenting).
194. Hickman & Krueger, supra note 32, at 1275-79 (finding an agency win rate of 60.4% among courts of appeals decisions applying Skidmore - what the authors consider a higher-than-ordinary win rate, but one lower than the agency win rate when courts of appeals apply Chevron). It is notable that Hickman and Krueger's study of Skidmore win rates among courts of appeals judges is much lower than our study of Skidmore's win rates at the Supreme Court level. In our view, the best explanation of this variance is that the agency or the Solicitor General presented its full panoply of Skidmore reasoning only at the Supreme Court level, with a much less impressive case - or none at all - at the court of appeals level.
195. See supra text accompanying notes 134-36.
196. 546 U.S. 243 (2006).
197. Table 16 excludes subject areas where there were fewer than ten cases because the small sample size skews the results. Also, in order to present a more accurate picture of the Court's practice, Table 16 presents the win rate for all ninety-three cases where foreign affairs and national security were at issue, instead of the win rate for only those six cases where foreign affairs and national security was the dominant subject area.
198. The typical federal jurisdiction issue, to take something from the intermediate category, likewise involves legal, institutional, and practical considerations about which the Justices often do have strong opinions, know as much as the Solicitor General, and believe they have little to learn from his submissions.
199. Evidence for this abounds in Justice Blackmun's Notes for the Chevron Conference. Blackmun Papers, supra note 6, Box 397, Folder 7. The Conference vote was 4-3 to reverse the D.C. Circuit and uphold the EPA. Justice Blackmun's Notes place little question marks by the "reverse" votes of Justices White, Powell, and Stevens, indicating that their votes were tentative at best. "When I am so confused, I go with the agency," Justice Stevens confessed. Justice O'Connor voted to affirm the D.C. Circuit but candidly indicated that she found the bubble concept very attractive, especially in light of the "suffering" of private industries. After Justice O'Connor recused herself, Chief Justice Burger and Justice Brennan - the most unlikely ideological bedfellows - changed their minds and joined Justice Stevens's opinion allowing the bubble concept. It is impossible to imagine this level of honest disagreement, tentativeness, and vote-changing in the Oregon Aid-in-Dying Case.
200. This argument is presented in HENRY S. RICHARDSON, DEMOCRATIC AUTONOMY: PUBLIC REASONING ABOUT THE ENDS OF POLICY 219-22 (2002).
201. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 853-58, 863-66 (1984).
202. See United States v. Mead Corp., 533 U.S. 218, 247-50 (2001) (Scalia, J., dissenting).
203. Yoav Dotan, Making Consistency Consistent, 57 ADMIN. L. REV. 995, 1000-01 (2005). Cf. Hickman & Krueger, supra note 32, at 1286-88 (finding that courts of appeals applying Skidmore gave less emphasis to consistent agency policy than the authors expected).
204. Johnson v. United States, 529 U.S. 694, 718 (2000) (Scalia, J., dissenting).
205. Note that Justice Kennedy, the author of Oregon, joined the Chief Justice's opinion for the Court in Glucksberg, which rejected a right to die in very broad language. Washington v. Glucksberg, 521 U.S. 702 (1997). The other five Justices in the Oregon majority wrote concurring opinions open to a constitutional right to die under certain circumstances. See id. at 736 (O'Connor, J., concurring); id. at 738 (Stevens, J., concurring in the judgment); id. at 752 (Souter, J., concurring in the judgment); id. at 789 (Ginsburg, J., concurring in the judgment); id. (Breyer, J., concurring in the judgment).
206. We followed conventional understandings of these terms. So "liberal" agency interpretations would be those which favored victim claims in civil rights cases (except for affirmative action claims), employee claims in labor and pension cases, taxpayer claims in tax cases, debtor claims in bankruptcy cases, defendant claims in criminal cases, people seeking benefits in entitlement cases, Native American claims in Indian cases, immigrants' claims in immigration cases, and consumer or consumer-protecting claims in business regulation, telecommunications, and transportation cases. "Conservative" interpretations are usually the flip side of liberal interpretations.
207. We deviate from this rule only in the labeling of William Brennan who, although appointed by Republican Dwight Eisenhower, was a known Democrat. One of us would be inclined also to deviate for John Paul Stevens, a former plaintiffs' antitrust attorney elevated to the Court by President Ford (and his respected Attorney General Edward Levi), in a rare appointment that was apparently based solely on merit.
208. Our findings here confirm and, we hope, deepen similar findings by previous legal scholars, starting with Revesz, supra note 38, at 1719, 1743-47, who found strong evidence of ideological voting by D.C. judges adjudicating challenges to EPA rules and other actions. See also Kerr, supra note 32, at 37-39 (finding significant evidence of ideological voting in Chevron cases among the courts of appeals); Miles & Sunstein, supra note 38, at 832-47 (finding significant evidence of ideological voting by Supreme Court Justices in Chevron cases decided between 1994 and 2005).
209. On the water-muddying that has accompanied Mead, see Bressman, supra note 32, at 1445; Ronald M. Levin, Mead and the Prospective Exercise of Discretion, 54 ADMIN. L. REV. 771, 774-76 (2002);
210. Adrian Vermeule, Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 347 (2003).
211. United States v. Mead Corp., 533 U.S. 218, 256-57 (2001) (Scalia, J., dissenting); Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1015 n.10 (2005) (Scalia, J., dissenting).
212. Barnhart v. Walton, 535 U.S. 212 (2002) (Breyer, J.); Breyer, supra note 17, at 379-81; see also Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534 (2007) (Breyer, J.) (applying Chevron, but also emphasizing agency expertise, the agency's longstanding interpretation, and likely congressional reliance).
213. Administrative Procedure Act of 1946, Pub. L. No. 404, 60 Stat. 237 (codified as amended at 5 U.S.C. §§ 551-559, 701-706 (2000)).
214. Cf. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807 (2002) (criticizing Mead for adopting a standards approach that, ex ante, does not provide sufficient guidance for lower courts and other actors).
215. The closest Scalia has come has been his dissenting opinion in Mead, 533 U.S. at 239-61. For institutional defenses of an even stronger reading of Chevron, see ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 183-229 (2006);
216. David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L.J. 97, 138-41 (2000).
217. Breyer, supra note 17, at 379 ("If taken literally, the Court's language [in Chevron] suggests a greater abdication of judicial responsibility than seems wise . . . ."); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 499-526 (1989) (criticizing a strong version of Chevron as contrary to original constitutional concerns about excessive delegation and alienation of policymaking from We the People's elected representatives); id. at 472-74 (contrary to the APA as well).
218. THE FEDERALIST No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
219. See William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001);
220. John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001).
221. 5 U.S. (1 Cranch) 137, 177 (1803); see generally Thomas W. Merrill, Marbury v. Madison as the First Great Administrative Law Decision, 37 J. MARSHALL L. REV. 481 (2004).
222. Marbury, 5 U.S. (1 Cranch) 137 (holding that although Secretary of State acted lawlessly, the Court lacked jurisdiction to issue mandamus against him); Mark Graber, Establishing Judicial Review? Schooner Peggy and the Early Marshall Court, 51 POL. RES. Q. 221, 233-36 (1998).
223. Cass R. Sunstein, Beyond Marbury: The Executive's Power To Say What the Law Is, 115 YALE L.J. 2580, 2589, 2594-95, 2610 (2006) (relying on Report of the Attorney General's Committee on Administrative Procedure, S. Rep. No. 77-8, at 90-91 (1941)).
224. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2081 (1990);
225. see also Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 468 (1987) (arguing that post-New Deal evidence strengthens the conclusion that "Congress favors a relatively aggressive judicial role" in reviewing agency actions for consistency with law).
226. See John Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 193-99 (1998) (providing the most comprehensive demonstration that a broad understanding of Chevron is inconsistent with the original expectations of, as well as the plain meaning and structure of, the APA).
227. 5 U.S.C. § 706 (2000).
228. Id. § 706(2)(A) (emphasis added).
229. Id. § 706(2)(C); see generally Duffy, supra note 207, at 193-94; Farina, supra note 200, at 472-74.
230. Louis L. Jaffe, Judicial Review: Question of Law, 69 HARV. L. REV. 239, 249-57 (1955).
231. Id.
232. Id.
233. Id. at 263-64.
234. 432 U.S. 416 (1977).
235. See, e.g., Administrative Conference of the United States, supra note 22; Monaghan, supra note 22, at 26.
236. See Merrill, supra note 22, 2171-75.
237. Batterton, 432 U.S. at 425; Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).
238. Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 199 (1992) (first quotation in text);
239. Peter Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1124 (1987) (second quotation).
240. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 516;
241. Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. L.J. AM. U. 269, 277 (1988);
242. see also LOUIS JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 564-65 (1965) (originating this view, then concededly personal to the author). Chevron said that Congress may be said to delegate lawmaking authority to the agency "[i]f Congress has explicitly left a gap for the agency to fill." 467 U.S at 843-44 (emphasis added). This language contains more than its share of mysteries, but the Court has not read the language as broadly as Justice Scalia would. The most natural reading of this language is that if Congress "explicitly" delegates authority to an agency to fill in statutory gaps, that counts as authority to make law.
243. U.S. CONST. art. I, § 1.
244. U.S. CONST. art. I, § 7.
245. INS v. Chadha, 462 U.S. 919, 946-51 (1982); Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1339, 1430-38 (2001);
246. John Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673 (1997).
247. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 619-30 (1992).
248. Herz, supra note 219, at 203-07.
249. 5 U.S.C. § 558(b) (2000).
250. 92 CONG. REC. 5654 (1946) (statement of Rep. Walter, House sponsor of APA).
251. See Duffy, supra note 207, at 198-99.
252. 5 U.S.C. § 559 (2000) (emphasis added); see Duffy, supra note 207, at 198 n.427.
253. U.S. CONST. art. II, § 1, cl. 1.
254. U.S. CONST. art. II, § 2, cl. 1 (President as Commander-in-Chief of the armed forces); U.S. CONST. art. II, § 2, cl. 2 (presidential authority to negotiate treaties); U.S. CONST. art. II, § 3 (presidential authority to "receive Ambassadors").
255. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-90 (1950) (Black, J.).
256. Id. at 635-37 (Jackson, J., concurring); id. at 635-36 n.2 (discussing and invoking Curtiss-Wright).
257. Id. at 637.
258. Id.
259. Id. at 637-38.
260. 453 U.S. 654, 667-69 (1981).
261. Id. at 669-74 (relying on and quoting 50 U.S.C. § 1702(a)(1)(B) (2000 & Supp. I 2001).
262. 28 U.S.C. § 1602-1611 (2000).
263. Dames & Moore, 453 U.S. at 679-84.
264. See Beverly Carl, Suing Foreign Governments in American Courts: The United States Foreign Sovereign Immunities Act in Practice, 33 SW. L.J. 1009 (1979) (examining the law creating special federal jurisdiction for lawsuits against "foreign states" and reporting that Congress rejected a proposal that would have allowed the President to remove cases against foreign states from federal court). One of us was involved in this case, contributing to the Brief for Intervenor-Respondent the Islamic Republic, Dames & Moore v. Regan, 453 U.S. 654 (1981) (No. 80-2078).
265. That a treaty ratified by the Senate could have accomplished this amendment of the FSIA provides further constitutional argument against Dames & Moore. The Supremacy Clause in Article VI suggests that "treaties" not only trump state law, but also may amend previous federal statutes. U.S. CONST. art. VI. Treaties are only those instruments ratified by the Senate, which suggests that executive agreements (not ratified by the Senate) cannot modify previous federal statutes. U.S. CONST. art. II, § 2, cl. 2.
266. The Court claimed that the President's suspension order did not divest lower courts of FSIA jurisdiction but merely created a new rule of law binding on the lower courts. Dames & Moore, 453 U.S. at 684-85. We find that an astounding claim, for it suggests that an executive order (not ratified by the Senate) can modify a federal statute. More persuasive is the Court's further argument, that the international tribunal was a more effective remedy for claimants, especially in light of the fact that IEEPA gave the President authority to transfer all Iranian funds back to Iran, thereby rendering any federal court judgment worthless. Id. at 686-87.
267. Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280 (2006).
268. Id. at 2298-2301. It is not clear how the Completion Power would work in the Oregon Aid-in-Dying Case. In a debate between Manning and one of me authors at the Yale Law School, Manning declined to defend the Scalia dissent along Completion Power lines.
269. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 667 (1952).
270. Goldsmith & Manning, supra note 244, at 2284-2301 (arguing for post-World War II ratification of Chief Justice Vinson's dissenting opinion in Youngstown).
271. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 n.23 (2006). Even the Solicitor General, defending the President's unauthorized military commissions, did not rely on the Steel Seizure dissent, which Goldsmith and Manning claim is now the prevailing approach. See Brief for Respondent, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (No. 05-184).
272. U.S. CONST. art. I, § 8, cl. 18; McCulloch v. Maryland, 17 U.S. (1 Wheat.) 316, 324 (1819).
273. U.S. CONST. art. II, § 3 (emphasis added).
274. See e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 198-201 (1985);
275. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345, 345.
276. See, e.g., Solid Waste Agency v. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001), followed in Rapanos v. United States, 126 S. Ct. 2208 (2006); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Trades Council, 485 U.S. 568 (1988), followed in BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002).
277. See Washington v. Glucksberg, 521 U.S. 702 (1997), analyzed supra note 190 (rejecting, in five concurring opinions, a general constitutional "right to die," but also concluding that it was premature to reject such claims under all circumstances); Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990) (saying in dictum that the Due Process Clause protects people's right to refuse unwanted life-saving medical services).
278. On the values of federalism, see Gregory v. Ashcroft, 501 U.S. 452, 457-65 (1991); Clark, supra note 223, at 1339.
279. For an early survey and analysis of these rules, see Eskridge & Frickey, supra note 224, at 619-29; William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 102-04 (1994) (containing a list of such rules).
280. United States v. Bass, 404 U.S. 336, 349 (1971); see also Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 375-77 (2002) (applying this reasoning to state tort law); BFP v. Resolution Trust Corp., 511 U.S. 531, 542-43 (1994) (state property law).
281. Gonzales v. Oregon, 546 U.S. 243, 273-75 (2006).
282. Pharm. Research & Mfrs. v. Walsh, 538 U.S. 644, 675-84 (2003) (Thomas, J., concurring); William N. Eskridge, Jr., Vetogates, Chevron, Preemption, NOTRE DAME L. REV. (forthcoming 2008) (supporting Justice Thomas's point empirically through analysis of 130 Supreme Court preemption cases involving agency interpretations or rules, at Table 1) (on file with the author);
283. see generally Nina A. Mendelsohn, Chevron and Preemption, 102 MICH. L. REV. 737 (2004). Tom Merrill is working on a project which will devise default rules for deferring (or not) to agency preemption of state law.
284. See Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. (forthcoming 2008), available at http:www.law.northwestern.edu/colloquium/constitutionallaw/Merrill.pdf.
285. 535 U.S. 212, 221-22 (2002) (giving Chevron deference to recent Social Security Administration (SSA) legislative rule, but also emphasizing that SSA's interpretation was "longstanding" and reflected the agency's "expertise" and "careful consideration" over a period of time); see also Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) (applying Chevron so long as the agency was not resolving "unusually basic legal question[s]").
286. Strauss, supra note 219, at 1121.
287. Id. at 1121-29.
288. Merrill, supra note 22, at 2154.
289. Id.; accord Mistretta v. United States, 488 U.S. 361, 372 (1989) (observing that Congress cannot accomplish its regulatory objectives without the ability to delegate to agencies the job of drafting the precise rules needed to implement statutory goals).
290. See Peter Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1478 (1992) (discussing levels of deference given by courts to agency decisions and publication rules);
291. see generally Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation, 52 ADMIN. L. REV. 159 (2000).
292. The distinction between horizontal and vertical predictability is drawn from William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 116 (1988).
293. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 862-64 (1984).
294. The classic case is the NLRB, which jettisons its own adjudicative precedents right and left, literally. See generally Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. PA. J. LAB. & EMP. L. 707 (2006) (documenting ideological voting on the Board as the reason driving the Board's overruling and recycling its own precedents).
295. See, e.g., Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1015-20 (2005) (Scalia, J., dissenting) (arguing for greater judicial tolerance of agency shifts in interpretation).
296. See supra Table 11 (reporting only 39 cases in our population of 1014 where an agency interpretation was apparently driven by a change in presidential administrations).
297. See supra Tables 10 & 11 (reporting our breakdown of longstanding, evolving, and recent agency interpretations, with a further breakdown of recent interpretations).
298. See, e.g., Cent. Bank v. First Nat'l Bank, 511 U.S. 164, 192-99 (1994) (Stevens, J., dissenting) (arguing that the majority overturns longstanding SEC interpretation of Securities Exchange Act § 10(b) that had been adopted by all the courts of appeals and approved by the relevant congressional committees).
299. 5 U.S.C. § 553 (2000) (informal rulemaking); id. § 706(2)(a) ("arbitrary and capricious" standard of judicial review); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (describing the requirements of § 706 review to include rational explanation normatively connected with congressional purposes and factually
300. See, e.g., Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda, 6 J.L. ECON. & ORG. (SPECIAL ISSUE) 167 (1990);
301. Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1064-67 (1997);
302. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1685 (1975).
303. See, e.g., Spence & Cross, supra note 199, at 141-42.
304. See, e.g., Owen Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1 (1979); Stewart, supra note 273, at 1786.
305. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 13 (1997) (denouncing the old common law method as obsolescent in the modern regulatory state); VERMEULE, supra note 199, at 229.
306. See, e.g., James J. Brudney et al., Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 OHIO ST. L.J. 1675, 1689-91 (1999); Revesz, supra note 38, at 1719. This literature, in turn, is contested.
307. See, e.g., William S. Jordan, III, Judges, Ideology, and Policy in the Administrative State: Lessons from a Decade of Hard Look Remands of EPA Rules, 53 ADMIN. L. REV. 45, 98-99 (2001).
308. See, e.g., Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486, 520 (2002).
309. See, e.g., Jerry L. Mashaw, Prodelegation, 1 J.L. ECON. & ORG. 85 (1985);
310. R. Shep Melnick, Administrative Law and Bureaucratic Rationality, 44 ADMIN. L. REV. 245, 257 (1992).
311. See JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 242 (1990);
312. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1400-02 (1992);
313. Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN. L. REV. 7, 8 (1991). This body of literature is grounded upon excellent case studies from several different fields.
314. See, e.g.. Brief for Federal Petitioners, at 37-43, K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) (No. 86-495) (setting forth the statutory and regulatory history of the import restrictions on goods bearing a trademark owned by an American firm in an excellent Solicitor General brief drafted by now-Dean Robert Rasmussen).
315. See Memorandum from Sheldon Bradshaw, Deputy Assistant Attorney Gen., to the Attorney Gen. (June 27, 2001), reprinted as App. E to Petition for Certiorari at 106a-148a, Gonzales v. Oregon, 546 U.S. 243 (2006) (No. 04-0623) (surveying authorities distinguishing between legitimate medical use of drugs and illegitimate use to "assist suicides," but without any mention of modern authorities in medical ethics explaining the moral bases of the "death with dignity" movement and supporting participation of doctors).
316. Compare Brief for the United States as Amicus Curiae Supporting Affirmance, Geier v. Honda Motor Co., 529 U.S. 861 (2000) (No. 98-1811) (arguing that the Safety Act does not expressly preempt state tort liability for auto manufacturers' failure to provide airbags, but such liability falls because it conflicts with the agency's standard for the issue), with Geier, 529 U.S. at 867-77 (following the Solicitor General's reasoning closely).
317. In addition to Chevron and Geier, which are very much cases about regulatory uncertainty, see also Forney v. Apfel, 524 U.S. 266, 273 (1998) (deferring to HHS on floodgates problem); Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997) (deferring to EEOC on policy consequences).
318. There is a growing literature on the government's management of uncertainty more generally. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CYCLE: TOWARD EFFECTIVE RISK REGULATION 29 (1993) (criticizing the government for spending too much money on reducing or eliminating low-risk harms, while under-spending on reducing higher-risk harms).
319. See generally M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383 (2004).
320. See, e.g., Merrill, supra note 258.
321. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984); cf. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part) (making a similar point).
322. See, e.g., Mathew D. Adler, Judicial Restraint in the Administrative State: Beyond the Counter-majoritarian Difficulty, 145 U. PA. L. REV. 759, 875-76 (1997);
323. Kenneth W Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 312 (1986).
324. See, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE THE LAW 152 (1997);
325. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2335 (2001);
326. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 105-06 (1994).
327. See, e.g., Cynthia R. Farina, Undoing the New Deal Through the New Presidentialism, 22 HARV. J.L. & PUB. POL'Y 227 (1998) (arguing that presidential control is anti-regulatory);
328. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 AM. U. L. REV. 443 (1987) (arguing that presidential control interferes with agency independence);
329. Peter L. Strauss, Presidential Rulemaking, 72 CHI.- KENT L. REV. 965 (1997) (arguing that presidential rulemaking threatens to upset the constitutional checks and balances within the national government).
330. Elena Kagan argues that Chevron deference should be limited to issues for which there has been significant White House input. Kagan, supra note 290, at 2333-35. But see David Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 234-37 (retracting that limitation and arguing for the application of Chevron to any interpretation adopted by an agency head appointed by the President; a much broader application for Chevron); see also Stack, supra note 165 (arguing more cautiously that when Congress has delegated lawmaking authority to the President, his interpretations are entitled to Chevron deference).
331. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 506-11 (2003). For example, the so-called "Republican war on science" that has been fought out of the White House during the George W. Bush Administration has been conducted through backdoor (therefore hard to detect) influences on more formal decisionmaking processes.
332. See John Horgan, Political Science, N.Y. TIMES BOOK REV., Dec. 18, 2005, at 11
333. (reviewing CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE (2005), and discussing the Bush Administration's repeated attempts to overrule expert opinion in scientific and environmental agencies).
334. Cynthia R. Farina, Faith, Hope, and Rationality or Public Choice and the Perils of Occam's Razor, 28 FLA. ST. U. L. REV. 109, 128-29 (2000);
335. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1231-42 (2006).
336. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984).
337. See William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 539 (1992);
338. see also Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2126-28 (2002).
339. Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754 (1989) (narrow interpretation of Title VII's counsel fees provision); Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (narrow interpretation of § 1981, disallowing a claim of race-based job termination); Lorance v. AT&T Tech., 490 U.S. 900 (1989) (broad, employer-protective interpretation of Title VII's statute of limitations); Martin v. Wilks, 490 U.S. 755 (1989) (interpreting the law of judgments to allow "reverse discrimination" plaintiffs to challenge affirmative action decrees); Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (narrow interpretation of Title VII's disparate impact claim for relief); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (narrow interpretation of Title VII in "mixed motive" cases).
340. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (overriding all six decisions cited in note 297 supra); see William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613 (1991) (describing the furor created by the Court's aggressive cutback on civil rights statutes and anticipating the 1991 override).
341. The Solicitor General filed amicus briefs firmly supporting civil rights claims in Patterson and Lorance, and supporting a fairly pro-plaintiff interpretation of plaintiff's burden in Hopkins.
342. This empirical claim will be tested in subsequent work.
343. THE FEDERALIST NOS. 10 & 51 (James Madison) (rejecting direct democracy and arguing for a representative democracy); see also CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993);
344. Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1515-16 (1991);
345. Frank Michelman, The Republican Civic Tradition, 97 YALE L.J. 1493, 1508-09 (1988).
346. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Arthur Goldhammer trans., Penguin Putnam 2004) (1837) (observing that democratic values had saturated American public culture by the 1830s);
347. ALEXANDER KAYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES (1999) (tracing the dramatic expansion of the franchise in the early nineteenth century and, again, after World War I).
348. See Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 370 n.168 (2002).
349. RICHARDSON, supra note 185, 214-19; see also Mark E. Warren, Deliberative Democracy and Authority, 90 AM. POL. SCI. REV. 46, 47 (1996). Complementary accounts have been derived from standard civic republican sources by Bressman, supra note 293;
350. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83 (1994).
351. RICHARDSON, supra note 185, at 219-22 (criticizing notice-and-comment rulemaking for not considering enough voices and not considering them early enough). Richardson mentions "negotiated rulemaking" as a possible amelioration but follows the reservations of Jody Freeman. See Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 88 (1997). Another innovation since Richardson set forth his theory is that some agencies now maintain internet sites for notice-and-comment rulemaking; this potentially opens up rulemaking to more of the public.
352. RICHARDSON, supra note 185, at 222-30.
353. See Mashaw, supra note 279; MASHAW & HARFST, supra note 280, at 224-54 (providing an excellent case study of agency paralysis because of judicial review and endless rulemaking); Melnick, supra note 279, at 246; Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59 (1995);
354. Paul R. Verkuil, Comment: Rulemaking Ossification - A Modest Proposal, 47 ADMIN. L. REV. 453 (1995).
355. See, e.g., KEVIN MACDONALD, SHIFTING OUT OF PARK: MOVING AUTO SAFETY FROM RECALLS TO REASON 96-97 (2006);
356. William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability To Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393 (2000) (answering no to the question posed in the title).
357. Bragdon v. Abbott, 524 U.S. 624 (1998).
358. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996).
359. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 139-41 (William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation Press 1994) (1958) (providing the classic account of the choice between rules and standards for legal regulation);
360. cf. Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347 (2005) (applying the rules-versus-standards literature as a way of understanding the distinction between a textualist like Scalia and an intentionalist like Breyer).
361. 535 U.S. 212, 219-22 (2002); see also Krzalic v. Republic Title Co., 314 F.3d 875 (7th Cir. 2002) (vigorous debate between Judges Posner and Easterbrook over what Mead and Barnhart require of lower courts); Bressman, supra note 32, at 1457-74 (exploring the variety of ways Mead and Barnhart have produced a "muddle" in the lower courts).
362. Cf. Merrill, supra note 198, at 819-26 (urging the Court to adopt bright-line meta-rules for Chevron Step 0 inquiries).
363. See William N. Eskridge, Jr. & John Ferejohn, Politics, Interpretation, and the Rule of Law, in THE RULE OF LAW 4 (Ian Shapiro ed., 1994).
364. See Hickman & Krueger, supra note 32, at 1307-09 (noting that lower courts have already tended to apply Skidmore rather than Seminole Rock when agencies are interpreting their own regulations).
365. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2846 (2006) (Thomas, J., joined by Scalia, J., dissenting). The majority ignored Curtiss-Wright, and Justice Alito (a dissenter on all procedural as well as substantive issues that divided the Court in Hamdan) declined to join the Curtiss-Wright deference discussion in Justice Thomas's dissent. Chief Justice Roberts did not participate in the case, because he had joined the opinion below which was reversed in Hamdan. Notably, the lower court did not invoke Curtiss-Wright deference. See Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
366. Hamdan, 126 S. Ct. at 2800 (Kennedy, J., concurring in part) (quoting Youngstown Steel Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).
367. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV. 263 (2006) (arguing that the President should only be able to claim statutory power if the statute expressly grants such power and, if power is granted to an executive officer, there should be a strong negative inference against the President having directive authority).
368. See Stack, supra note 165, at 539 (arguing that congressional delegations of lawmaking authority to the President should be accorded Chevron deference).
369. Specifically, the Court needs to address the Merrill and Watts demonstration that the NLRA and the Food Drug and Cosmetics Act, for example, are not properly viewed as such congressional delegations. See Merrill & Watts, supra note 151. The Court might still conclude that it is too late to overrule precedents assuming the contrary, especially because Congress, the agencies, and the public have operated under this assumption for so long. But this is not an issue the Court should ignore, as it has done.
370. The statutes (including various amendments to them) are the Interstate Commerce Act of 1887, the Securities Act of 1933, the Securities Exchange Act of 1934, the Communications Act of 1934, the Federal Power Act of 1934, the National Labor Relations Act of 1935, the Social Security Act of 1935, the Food Drug & Cosmetics Act of 1938, the Federal Power Act of 1935, the Natural Gas Act of 1938, the Immigration & Naturalization Act of 1952, the Medicaid Act of 1965, the Medicare Act of 1965, the Clean Air Act Amendments of 1970, the Federal Water Pollution Control Act Amendments of 1972, the Endangered Species Act of 1973, the Federal Labor Relations Act of 1978, the Natural Gas Policy Act of 1978, the Staggers Rail Act of 1982, the Sentencing Reform Act of 1984, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
371. Following the footsteps of Justice Frankfurter, his Harvard Law School predecessor on the Court, Justice Breyer often compiles neat appendices to his opinions. He or a colleague might usefully compile an appendix of statutes they (rather than just we) consider to have delegated lawmaking authority, with references to Supreme Court or lower court opinions properly applying Chevron under those circumstances.
372. From a rule-of-law perspective, me Scalia approach of affording Chevron deference to all interpretations adopted by the agency head (but not litigating positions) is preferable to the Barnhart criteria, unless the Court decides to eliminate Chevron as an independent category and subject all agency interpretations to Skidmore deference. Unfortunately, the constitutional and statutory problems we have identified with the Scalia approach disqualify it as the best rule-of-law alternative.
373. For discussion of these "clear statement" rules, see Eskridge & Frickey, supra note 255, at 101-05.
374. See, e.g., Bressman, supra note 32; Seidenfeld, supra note 278; see also Merrill & Watts, supra note 151 (discussing various strategies the Court might follow in light of the delegation conventions Congress actually followed at various points in the twentieth century).
375. See, e.g., BREYER, supra note 285, at 49; MASHAW & HARFST, supra note 280, at 224-54; McGarity, supra note 280; Pierce, supra note 280.
376. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). We do not make a sharp distinction between a "power to persuade" reading of Skidmore and a "deference" reading of Skidmore. For a sharp distinction, see Hickman & Krueger, supra note 32, at 1294-99.
377. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397 (2007) (examining how the use of guidance documents affects the interests of regulatory beneficiaries and arguing for procedural reforms that would enable regulatory beneficiaries to engage in the agency's decisionmaking process); see generally Rakoff, supra note 264 (outlining the framework within which American administrative agencies are returning to informal administrative procedures and comparing American administrative procedures with other legal systems);
378. Erica Seiguer & John J. Smith, Perception and Process at the Food and Drug Administration: Obligations and Trade-Offs in Rules and Guidances, 60 FOOD & DRUG L.J. 17 (2005) (examining rulemaking and guidance document development at the FDA).
379. See Watters v. Wachovia Bank, 127 S. Ct. 1559 (2007) (consultative-deference case where Court went along with longstanding agency interpretation against which Congress had amended the Statute); Zuni Pub. Schs. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534, 1541 (2007) (Chevron deference case to same effect, but with stronger affirmative evidence of legislative approval).
380. See Farragher v. City of Boca Raton, 524 U.S. 775, 804 (1998) (accepting the EEOC Guidelines as settled law because of congressional acquiescence and developing liability rules for employers); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (adopting the EEOC's legal structure).
381. 127 S. Ct. 1534 (2007).
382. Id. at 1546.
383. Id. at 1540, 1544-45.
384. Id. at 1541.
385. 490 U.S. 714, 725-26 (1989).
386. Professor Peter Strauss, a former agency official and one of the top administrative law professors of the twentieth century, pressed this point upon us in comments he made at our Fall 2006 workshop at the Columbia School of Law and in follow-up conversations.
387. Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 958-59 (1997) (abrogating In re Hoskins, 102 F.3d 311 (7th Cir. 1996) and In re Valenti, 105 F.3d 55 (2d Cir. 1997)).
388. In re Hoskins, 102 F.3d at 317, 319 (Easterbrook, J., concurring in judgment), abrogated by Rash, 520 U.S. 953; accord Rash, 520 U.S. at 966-67 (Stevens, J., dissenting).
389. 33 U.S.C. §§ 1344(a), 1362(7) (2000).
390. 33 U.S.C. § 328.3(a)(2) (2000).
391. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
392. 126 S. Ct. 715 (2006).
393. Id. at 2236 (Roberts, C.J., concurring); id. at 2266 (Breyer, J., dissenting). For other cases where concurring Justices have made similar pitches, see, for example, Norfolk S. Ry. v. Shanklin, 529 U.S. 344 (2000) (Breyer, J., concurring); Christensen v. Harris County, 529 U.S. 576, 589 (2000) (Souter, J., concurring); United States v. Watts, 519 U.S. 148, 158-59 (1997) (Breyer, J., concurring). But see id. at 158 (Scalia, J., concurring) (rejecting Breyer's position that the Court's opinion posed no obstacle to the Sentencing Commission reversing the case's outcome because the statute was clear and therefore allowed no agency flexibility).
394. See, e.g., Pharm. Research & Mfrs. v. Walsh, 538 U.S. 644 (2003); Nw. Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 368 n.14, 374 (1994).
395. See, e.g., Lawrence v. Chater, 516 U.S. 163, 171 (1996) (per curiam).
396. Cf. Bressman, supra note 32, at 462-63 (urging administrative law to get past the countermajoritarian anxiety); see generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962);
397. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153 (2002).
398. Justice Powell was only one of three Justices during our survey period who did not serve as a judge before appointment to the Court.
399. Like Justice Powell, Justice White also had no judicial experience before appointment to the Court. He is unique among our collection in that his voting in the period from 1984-93, when he retired, was the opposite of his political affiliation, New Frontier Kennedy Democrat.
400. Indeed, the dominant, almost monopolistic, political-science model is that the Justices' votes are determined only or primarily by ideology. See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998);
401. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993);
402. see also Theodore W. Ruger & Pauline T. Kim, The Supreme Court Forecasting Project, 104 COLUM. L. REV. 1150, 1163-71 (2004).
403. See VERMEULE, supra note 199, at 1-3, 12 (arguing for a no-frills textualist approach by federal judges that would leave virtually all statutory gapfilling to agencies).
404. See John F. Manning, Textualism as a Nondelegation Principle, 97 COLUM. L. REV. 673, 738-39 (1997) (arguing uiat, to avoid legislative self-delegation problems, federal courts should apply a strict textualist approach that does not treat legislative history as authoritative).
405. See Miles & Sunstein, supra note 38, at 879.
406. See id. at 880; Table 21 supra.
407. See James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, JUDICATURE, Jan.-Feb. 2006, at 220, 226-27 (finding that reliance on legislative history had a moderating influence on liberal Justices in labor cases);
408. James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect 26-27 (Ohio State Univ. Moritz College of Law Pub. Law & Legal Theory Working Paper Series, Paper No. 95, 2007), available at http://ssrn.com/abstract= 1008330 (providing a more detailed examination of the evidence).
409. See Sunstein, supra note 205, at 2607-10.
410. See Trevor Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1193-94 (2006) (discussing the Yoo Memorandum justifying the legality of executive branch torture).
411. Brudney & Ditslear, supra note 40, at 59-63.
412. Interestingly, Justices Breyer, Ginsburg, Souter, Kennedy, and Scalia - clustered together in the middle of Table 21, supra - were students in the Hart and Sacks course on The Legal Process in the late 1950s and early 1960s. The Hart and Sacks project aimed to facilitate the neutral operation of good government through reasoned elaboration by agencies and courts. Although they have wildly different personal and even writing styles, these five students of Hart and Sacks love the rule of law, carefully follow precedent, are dedicated students of the administrative and legislative process, and believe that agencies should take the lead in developing the contours of statutory policy. In this spirit, we offer a challenge to me new Chief Justice, who is himself familiar with Hart and Sacks's work: help foster a nonpartisan center of the Court that will reinvigorate statutory interpretation and agency lawmaking in the modern administrative state.
413. The theoretical bases for the inevitability of dynamic statutory interpretation are discussed in WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION, at ch. 2 (1994), and applied to various problems in id. chs. 1 and 3.
414. See also Adrian Vermeule, Dynamic Statutory Interpretation and the Institutional Turn 1-13 (Berkeley Electronic Press, Issues in Legal Scholarship, Art. No. 3, 2002), available at www.bepress.com/ils/iss3/ art3.
415. See Edward Rubin, Dynamic Statutory Interpretation in the Administrative State 13 (Berkeley Electronic Press, Issues in Legal Scholarship, Art. No. 2, 2002), available at www.bepress.com/ils/iss3/ art2;
416. Jerry Mashaw, Agency Statutory Interpretation, 9 (Berkeley Electronic Press, Issues in Legal Scholarship, Art. No. 9, 2002), available at http://www.bepress.com/ils/iss3/art9; accord ESKRIDGE, supra note 359, at ch. 4.
417. Cf. EDWARD L. RUBIN & MALCOLM M. FEELEY, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS 1-4, 20-25 (1998) (arguing that judicial handling of public-interest class actions and constitutional law needs to borrow ideas from judicial handling of administrative law).
418. See, e.g., United Steelworkers v. Weber, 443 U.S. 193, 230-51 (1979) (Rehnquist, J., dissenting) (relying on legislative history to demonstrate that the critical supporters of Title VII did not intend to allow even "voluntary" affirmative action programs).
419. See, e.g., id. at 201-04 (Brennan, J.) (relying on legislative history to demonstrate that Title VII's general purpose was not to prohibit private and voluntary affirmative action efforts); HART & SACKS, supra note 311, at 1377-80 (criticizing resort to legislative materials to determine specific intent, but admitting them to learn the general purpose of the statute).
420. See, e.g., Brief for Petitioners at 19-20, Gonzales v. Oregon, No. 04-623 (May 12, 2005) (arguing astutely that the Supreme Court had interpreted prior federal criminal statute regulating dangerous drugs not to allow doctors to use morphine to ease a patient's pain and presuming that Congress acquiesced in such interpretation when it adopted the CSA in 1970).
421. Id. at 34-35, 48.
422. Id. at 42-43.
423. See id. at 34-48.
424. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 122 (2000) (rejecting FDA assertion of jurisdiction over tobacco products in light of repeated FDA representations to Congress that it did not have such jurisdiction); Farragher v. City of Boca Raton, 524 U.S. 775, 792 (1998) (following EEOC interpretation of Title VII to protect against workplace sexual harassment, based upon congressional ratification of the idea); Babbitt v. Sweet Home, 515 U.S. 687, 702 (1995) (following Department of Interior interpretation of Endangered Species Act, based on subsequent congressional ratification of the agency's highly dynamic interpretation); Bob Jones Univ. v. United States, 461 U.S. 574, 599 (1983) (following IRS interpretation of Code to deny tax exemption to racially discriminatory schools, based upon congressional acquiescence in the controversial agency interpretation).
425. Gonzales v. Oregon, 546 U.S. 243, 265 (2006).
426. Id. at 266 (invoking Congress's implementation of the Psychoptropic Substances Convention, 21 U.S.C. § 801a(3) (2000)).
427. Id.
428. Id. at 273 (relying on the Anabolic Steroids Control Act of 1990, Pub. L. No. 101-647 § 1902, 104 Stat. 4851 (1990)).
429. Id. at 253.
430. See supra notes 297-99 and accompanying text.
431. See William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1362 (1988).
432. Oregon, 546 U.S. at 269 (distinguishing United States v. Moore, 423 U.S. 122 (1975)).
433. Id. at 299-301 (Thomas, J., dissenting) (criticizing the majority's departure from the broad interpretation the Court gave the CSA in Gonzales v. Raich, 545 U.S. 1 (2005)).
434. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 863-64 (1984). For a powerful statement of the effect that Chevron should have on stare decisis, see United States v. Mead Corp., 533 U.S. 218, 231-41 (Scalia, J., dissenting).
435. 545 U.S. 967, 968-69 (2005); see id. at 1019 (Scalia, J., dissenting) (urging a broader rethinking of stare decisis in agency-interpretation cases).
436. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (setting forth arbitrariness criteria for judicial review of notice-and-comment rulemaking).
437. See, e.g., State Oil Co. v. Khan, 522 U.S. 3 (1997), overruling Albrecht v. Herald Co., 390 U.S. 145 (1968). But see Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424 (1986) (rejecting the Department of Justice's suggestion that the Court overrule Keogh).
438. The Supreme Court's opinion in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), closely followed the views of Solicitor General Charles Fried to cut back and narrow Griggs v. Duke Power Co., 401 U.S. 424 (1971), where the Court had closely followed the views of Nixon Administration Solicitor General Erwin Griswold. Together with several decisions where the Court unwisely rejected moderate readings offered by Solicitor General Fried, Wards Cove generated the proverbial "firestorm of protest" and an angry congressional override. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074. For another decision that strikes us as open to question, see Leegin Creative Leather Products v. PSKS, Inc., 127 S. Ct. 2705 (2007), overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1991).
439. See, e.g., SCALIA, supra note 276, at 25 (1997); Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2051 (2002);
440. Geoffrey Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179, 1186. Compare the "gap-filling" role scholars find for many default rules in contract interpretation.
441. See, e.g., Alan Schwartz, The Default Rule Paradigm and the Limits of Contract Law, 3 S. CAL. INTERDISC. L.J. 389, 390 (1993).
442. See, e.g., Eskridge & Frickey, supra note 224, at 597; Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2164 (2002). Compare the "equilibrium-inducing" role scholars have attributed to some default rules in contract interpretation.
443. See Ian Ayres & Robert Gertner, Strategic Contractual Inefficiency and the Optimal Choice of Legal Rules, 101 YALE L.J. 729 (1992).
444. Gonzales v. Oregon, 546 U.S. 243, 274 (2006).
445. See, e.g., ESKRIDGE, supra note 359, at 49; CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 161 (1990). Compare the "normative" or "transformatory" default rules some scholars have attributed to some default rules in contract interpretation.
446. See, e.g., Jedediah Purdy, The American Transformation of Waste Doctrine: A Pluralist Interpretation, 91 CORNELL L. REV. 653, 667 (2006) (praising "transformatory" default rules); Schwartz, supra note 383, at 393 (criticizing "normative" default rules in contract interpretation).
447. Brief for Petitioners at 25, Gonzales v. Oregon, No. 04-623 (May 12, 2005).
448. This agency-based canon is the Hart and Sacks formula, HART & SACKS, supra note 311, which was inspired by Henry Hart's service in the Office of Price Administration during World War II. See id. at li (critical introduction by William N. Eskridge, Jr. and Phillip Frickey).
449. On the endogeneity of reasoning from purpose, see RICHARDSON, supra note 185; William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement, 89 MICH. L. REV. 707, 747-49 (1992).
450. See Eskridge & Frickey, supra note 255, at 56, for an early statement of this idea.
451. The tax category could have been coded differently, as Michael Graetz pointed out to us. Is it conservative for a court to sustain the tax load of the well-to-do taxpayers and companies who bring most of me claims against the IRS? The coding choice to label pro-IRS rulings as conservative was driven by consistency with the other categories, which reflect the conventional view that progovernment rulings are conservative. The same normative ambiguity can be seen in criminal cases: it is not inevitably conservative for a court to sustain federal prosecutions against purveyors of fraud, auto thieves, sexual assaulters, etc., but that is the conventional, process-driven categorization in criminal law and procedure, and the coding scheme follows that idea in the tax cases.
452. The methodology in text creates a bias in favor of longstanding and fairly stable interpretations because the Solicitor General's briefs almost always present the most detailed accounts of agency practice, and the Solicitor General has an incentive to present the agency's practice as longstanding and stable because that appeals to the Court's rule-of-law values.