Lessons from a nondelegation canon

Notre Dame Law Review

Volumn 83, Issue 4, 2008, Pages 1541-1566

  Manning, John F ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 51149103930     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (77)

1. See Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 331-32 (2000). The idea of nondelegation canons recurs frequently in contemporary public law scholarship. See, e.g., Adam B. Cox, Deference, Delegation, and Immigration Law, 74 U. CHI. L. REV. 1671, 1674-79 (2007) (using the nondelegation canons idea as a frame of reference for considering judicial approaches to immigration cases); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831, 840 (2001) (identifying Professor Sunstein's theory of nondelegation canons as a prominent modern justification for the canon requiring courts to interpret statutes to avoid serious constitutional questions); Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1214-15 (2006) (same).
2. See Sunstein, supra note 1, at 316.
3. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (requiring a clear statement of legislative intent before interpreting a statute "to alter the 'usual constitutional balance between the states and the Federal Government' " (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))); Atascadero, 473 U.S. at 242-43 (requiring a clear statement of congressional intent before inferring a waiver of sovereign immunity).
4. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 263-80 (1994) (requiring a clear statement for retroactive liability); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988) (same).
5. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (noting that the extraterritoriality canon "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord").
6. Among his compilation of nondelegation canons, Professor Sunstein also lists canons that promote conceptions of sovereignty (such as the canon requiring liberal construction of statutes and treaties in favor of Native American tribes) and those that promote generally held public policy commitments (such as the canon requiring narrow construction of tax exemptions). See Sunstein, supra note 1, at 322-35. As discussed below, this Essay will not focus on the derivation of the subjects protected by these nondelegation canons, but rather on their administrability. See infra note 17 and accompanying text. Although not central to the analysis, I believe that the canons affecting sovereignty are properly understood within the framework of constitutionally inspired canons; questions of sovereignty go to the relative allocation of authority in our system of government.
7. Professor Ernest Young, who favors such canons, sees no reason to believe that "[t]he force of a constitutional value . . . is exhausted by the set of cases in which that value would require invalidation of a conflicting statute." Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1593-94 (2000). As Professor Young notes, if one views the canon of avoidance as a resistance norm, it makes sense that "[t]he constitutional value would be protected even in cases in which the 'right answer' to the constitutional question would require that the statute be upheld." Id. at 1589.
8. Hence, even if the underlying constitutional norm is not sharply delineated, the canons should not trigger standard countermajoritarian-dilemma concerns: "[t]he relevant canons operate as nondelegation principles, and they are designed to ensure that Congress decides certain contested questions on its own. If this idea is a core structural commitment of the Constitution, there can be no problem with its judicial enforcement." Sunstein, supra note 1, at 338.
9. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 238-42.
10. See, e.g., Loving v. United States, 517 U.S. 748, 758 (1996) ("The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress and may not be conveyed to another branch or entity." (citation omitted)); Touby v. United States, 500 U.S. 160, 164-65 (1991) ("The Constitution provides that '[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.' From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government." (alteration in original) (citation omitted) (quoting U.S. CONST. art. I, § 1)). The Court has explained, moreover, that the Constitution vests lawmaking authority in Congress because of that body's unique qualities. See Loving, 517 U.S. at 757-58 ("Article I's precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and deliberative lawmaking."). Recently, an informative debate has developed around the basic question of whether the nondelegation doctrine has a constitutional foundation. Compare Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1304-28 (2003) (defending the traditional conception of the nondelegation doctrine), with Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1725-41 (2002) (invoking various textual, structural, and historical arguments to conclude that the implementation of an organic statute constitutes permissible "execution" of the law), and Eric A. Posner & Adrian Vermeule, Nondelegation: A Post-Mortem, 70 U. CHI. L. REV. 1331 (2003) (responding to Alexander and Prakash). Questions about the originalist pedigree of the nondelegation doctrine lie beyond the scope of this Essay. Rather, I seek here merely to examine the concerns that emanate from the Court's perception that there is a nondelegation doctrine, but that it does lend itself to manageable judicial review.
11. The Court has only twice invalidated statutes on nondelegation grounds. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935); Pan. Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). As Cass Sunstein thus observed, it is fair to say that "the conventional doctrine has had one good year" in our entire history. See Sunstein, supra note 1, at 322.
12. See, e.g., Lichter v. United States, 334 U.S. 742, 785-87 (1948) (upholding a statute authorizing an agency to recoup "excessive profits" from war contractors); Am. Power & Light Co. v. SEC, 329 U.S. 90, 104-06 (1946) (upholding a statute assigning the Securities and Exchange Commission power to reject corporate reorganizations that "'unduly or unnecessarily complicate the structure' or 'unfairly or inequitably distribute voting power among security holders'" (quoting 15 U.S.C. §79k(b)(2) (2000) (repealed 2005)); NBC v. United States, 319 U.S. 190, 225-26 (1943) (upholding a statute delegating authority to the Federal Communications Commission to allocate broadcast licenses in conformity with the "'public interest, convenience, [and] necessity'" (quoting 47 U.S.C. §§ 307(a), 309(a), 310(d) (2000)); see also, e.g., Ariz. Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U.S. 370, 386 (1932) (emphasizing that an agency exercising delegated lawmaking authority "speaks as the legislature, and its pronouncement has the force of a statute").
13. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001).
14. See id. at 475.
15. Id. at 474-75 (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)); see also Manning, supra note 9, at 241-42 (discussing the judicial competence concern); Sunstein, supra note 1, at 326-28 (same). Indeed, Chief Justice Marshall recognized that same concern in the early days of the Republic: The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825).
16. Professor Sunstein thus explains: Courts do not ask the hard-to-manage question whether the legislature has exceeded the permissible level of discretion, but pose instead the far more manageable question whether the agency has been given the discretion to decide something that (under the appropriate canon) only legislatures may decide. In other words, courts ask a question about subject matter, not a question about degree. Sunstein, supra note 1, at 338.
17. For example, some believe that the current Court picks and chooses constitutional values in a way that is not neutral in distributional consequences; they argue that present canons tend to favor economic liberties and state autonomy over individual rights. See William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1545-46 (1998) (book review) (arguing that the textualists on the Supreme Court selectively apply clear statement rules); Bradford C. Mank, Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 KY. L.J. 527, 527 (1998) ("[T]extualist judges selectively prefer clear-statement rules that favor states' rights and private economic interests, and usually narrow a statute's meaning."). Others have argued that what we now call nondelegation canons lead to the creation of "judge-made constitutional 'penumbra[s],'" unwisely extending the document's reach. See Richard A. Posner, Statutory Interpretation - In the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 816 (1983).
18. See infra note 49 and accompanying text. The classic articulation of the presumption against preemption states: In all pre-emption cases, and particularly in those [where] Congress has "legislated . . . in a field which the States have traditionally occupied," we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (first alteration added) (citation omitted) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1987)).
19. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1427-29 (2001) (quoting U.S. CONST. art. VI, cl. 2). The Supremacy Clause provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, cl. 2.
20. The first set of safeguards are found in the intricate provisions for adopting and amending "the Constitution" under Articles V and VII. See Clark, supra note 19, at 1331. Article VII of course provides that the ratification of "this Constitution" by nine states sufficed for its establishment as the Constitution of the United States. See U.S. CONST. art. VII. Article V of course supplies the manner of amendment. In the commonly used method, two thirds of both Houses "shall propose Amendments to this Constitution," and those amendments become "Part of this Constitution" when ratified by three quarters of the states. U.S. CONST. art. V. Citing the Supremacy Clause's reference to "Laws . . . made in Pursuance of [this Constitution]," Professor Clark notes that the terminology of Article I, Section 7 similarly refers to the enactment of "a Law." See Clark, supra note 19, at 1332. Article I, Section 7 provides that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States." U.S. CONST. art. I, § 7, cl. 2 (emphasis added). If the President signs the bill, it becomes a law. See id. But "if not he shall return it, with his Objections to that House in which it shall have originated." Id. In that case, if two-thirds of each House votes to override his or her veto, it can also "become a Law." Id. (emphasis added). "Treaties" make up the final category. See Clark, supra note 19, at 1332. The Treaty Clause provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2. Each such procedure thus conditions the adoption of its specified legal text on the assent of a majority or supermajority of the Senate, a supermajority of the states, or both. See Clark, supra note 19, at 1344-46. The Supremacy Clause's adoption coincided exactly with the Great Compromise providing for equal state representation in the Senate - further reinforcing the premise that the forms of law specified in the Supremacy Clause were meant to tap into processes in which the interests of the small states received explicit and disproportionate protection. See id. at 1352-55; see also Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 NOTRE DAME L. REV. 1421 (2008) (elaborating on the apparent connection between the compromises that gave rise to equal representation in the Senate and the adoption of the Supremacy Clause).
21. See Clark, supra note 19, at 1373-78 (discussing the Court's difficulties in articulating a judicially manageable standard for the nondelegation doctrine and favorably discussing Sunstein's nondelegation canons thesis).
22. See Rice, 331 U.S. at 230; Clark, supra note 19, at 1429 ("By recognizing only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land,' the Supremacy Clause requires adherence to constitutionally prescribed law-making procedures in order to displace state law. The presumption against preemption instructs courts to apply state law unless a federal statute reflects 'the clear and manifest purpose of Congress' to displace such law. By requiring the statute to be clear in this respect, the presumption ensures that Congress and the President - rather than politically unaccountable judges - make the crucial decision to preempt state law through constitutionally prescribed lawmaking procedures designed to safeguard federalism." (footnotes omitted) (quoting U.S. CONST. art. VI, cl. 2; Rice, 331 U.S. at 230)).
23. Preemption has become the subject of a considerable flurry of scholarship. See, e.g., William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1460-84 (2008) (arguing that the pervasiveness of vetogates in the federal legislative process counsels against strong judicial deference to agency interpretations on questions involving preemption of state law); Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 16-36 (2007) (arguing that given the constellation of interest groups at the national level, a presumption against preemption is more likely to inspire Congress to address the question of preemption expressly); Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 759-79 (2004) (arguing that the administrative process does not demonstrably protect state interests less effectively than does the legislative process); Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. (forthcoming 2008) (manuscript at 26-44, on file with author) (arguing that courts should more self-consciously consider comparative institutional competence in determining questions of preemption); Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. (forthcoming 2008) (manuscript at 19-39), available at http:// ssrn.com/abstract=1095327 (contending that the Court has increasingly come to use run-of-the-mill administrative law doctrines to protect state regulatory autonomy); Caleb Nelson, Preemption, 86 VA. L. REV. 225, 232 (2000) (arguing that the Founders would have understood the Supremacy Clause as adopting a non obstante clause that negates any presumption against implied repeal and therefore does not support a presumption against preemption); Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV. (forthcoming 2008) (manuscript at 44-55), available at http://ssrn.com/abstract= 1084919 (arguing that courts should give some, but ultimately rather limited, deference to agency determinations that state law should be preempted).
24. In his thoughtful contribution to this Symposium, Peter Strauss raises several objections to Clark's thesis. See Peter L. Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. 1567 (2008). To name one: the Supremacy Clause makes the enumerated categories of federal law supreme, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2 (emphasis added). Professor Strauss argues that unless federal law cannot preempt state common law, the term "Laws" as used in the foregoing clause must refer to state common law. See Strauss, supra, at 1567-73. On this account, Professor Clark's reading requires the term "Laws" to have one meaning in the first part of the Supremacy Clause ("Laws of the United States which shall be made in Pursuance" of this Constitution) and a different one in the final clause describing what is preempted. See id. at 1568-69. Professor Clark responds that "Constitution or Laws of any State" need not refer to common law because the states received the common law by adopting reception statutes or constitutional provisions. See Bradford R. Clark, The Procedural Safeguards of Federalism, 83 NOTRE DAME L. REV. 1681, 1685 (2008). Clark also notes that, even if "Laws of any State" were read to encompass common law, the Clause's initial reference to "Laws of the United States which shall be made in Pursuance" of the Constitution could not be read to refer to common law because (unlike statutes) such law was not understood to be "made." See id. at 1686-87. Any attempt to resolve this or the many other interesting points of difference between the two lies well beyond this Essay's scope. For purposes of triggering the present inquiry into the presumption against preemption as a nondelegation canon, it suffices to note that Professor Clark's thesis represents a substantial account of important structural, functional, and political elements of a compromise that yielded both the Supremacy Clause and a number of lawmaking procedures that fit coherently with its text and apparent design. Indeed, although not grounding the conclusion in the Supremacy Clause, others have defended the presumption against preemption as a nondelegation canon. See, e.g., Sunstein, supra note 1, at 331 (describing the nondelegation effect of the presumption as "an important requirement in light of the various safeguards against cavalier disregard of state interests created by the system of state representation in Congress").
25. The question of "judicial manageability" of course pervades constitutional adjudication and carries rich and complex connotations. See generally Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274 (2006). Here, I use judicial "manageability" or "administrability" to refer to the Court's own account of its deep reluctance to enforce the nondelegation doctrine because of a felt incapacity to determine how much delegated discretion is too much. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001).
26. See Sunstein, supra note 1, at 340.
27. Under Professor Sunstein's premises, nondelegation canons instruct reviewing courts to use tools of construction to ensure that decisions in sensitive areas properly reflect congressional choice rather than agency discretion. See id. at 338. Even the most formalist of judges would acknowledge that when judges interpret ambiguous or open-ended statutes, they properly exercise policymaking discretion as well. Cf. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515 (arguing that the traditional tools of construction used by courts frequently involve "judicial consideration and evaluation of competing policies"). Hence, the goals of the nondelegation canon framework would seem to apply no less when the issue is whether a sensitive decision is more properly attributed to congressional choice or judicial discretion. Along these lines, I note that the Court does not confine the presumption against preemption to agency-administered statutes; that canon also plainly applies to cases in which a judge makes the primary decision whether and to what extent a statute preempts. See, e.g., Dep't of Revenue v. ACF Indus., 510 U.S. 332, 345 (1994) (using the presumption to analyze whether the Railroad Revitalization and Regulatory Reform Act of 1976 preempts a state property tax as applied to railroads); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (invoking the presumption to decide whether the Federal Cigarette Labeling Act preempts a state tort action); Rice, 331 U.S. at 230 (applying the presumption in connection with a determination of whether the Federal Warehouse Act preempts various state law regulatory requirements for the storage of grain).
28. Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). The idea that all enacted texts will have some degree of indeterminacy has deep roots in our history. See, e.g., WILLIAM BLACKSTONE, 1 COMMENTARIES *62 (noting that "in laws all cases cannot be foreseen or expressed"); THE FEDERALIST NO. 37, at 229 (James Madison) (Clinton Rossiter ed., 1961) ("All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."); see also H.L.A. HART, THE CONCEPT OF LAW 123 (1961) (explaining why texts will inevitably have some indeterminacy on the margins).
29. Whitman, 531 U.S. at 4775 (quoting Mistretta, 488 U.S. at 417 (Scalia, J., dissenting) (emphasis omitted)).
30. Id. at 474-75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting)).
31. White v. United States, 191 U.S. 545, 551-52 (1903) (exemplifying the old formalist position).
32. Even the strictest textualists embrace that view. See, e.g., Deal v. United States, 508 U.S. 129, 132 (1993) (Scalia, J.) (arguing that it is a "fundamental principle of statutory interpretation (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used"); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 64 (1993) ("Because interpretation is a social enterprise, because words have no natural meanings, and because their effect lies in context, we must consult these contexts."). The modern conception derives from LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS §§ 134-142, at 44-48 (G.E.M. Anscombe trans., 3d ed. 2001), which emphasizes the use of words in linguistic interactions within a relevant community.
33. Elsewhere, I have extensively summarized evidence for and against this view, See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2395-408 (2003) (discussing the argument for strong intentionalism); id. at 2408-19 (describing the argument for intent skepticism).
34. See, e.g., Larry Alexander & Saikrishna Prakash, "Is That English You're Speaking?" Why Intention Free Interpretation Is an Impossibility, 41 SAN DIEGO L. REV. 967, 974-78 (2004) (explaining the centrality of the speaker's intention to the derivation of meaning); Paul Campos, That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text, 77 MINN. L. REV. 1065, 1089 (1993) (same); Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109 (2008) (same).
35. See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 547 (1983) ("[I]t turns out to be difficult, sometimes impossible, to aggregate [legislators' preferences] into a coherent collective choice. Every system of voting has flaws. The one used by legislatures is particularly dependent on the order in which decisions are made."); id. at 548 ("[W]hen logrolling is at work the legislative process is submerged and courts lose the information they need to divine the body's design."); Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239, 244 (1992) (noting that the success of a piece of legislation often depends on "idiosyncratic, structural, procedural, and strategic factors, which are at best tenuously related to normative principles embraced by democratic theorists and philosophers"). For a particularly thoughtful rebuttal to public choice skepticism about the recovery of legislative intent, see McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3, 24-25, which argues that floor managers and committee chairs act on behalf of the enacting coalition when they use legislative history to express the details of legislative policy.
36. Even if one starts from a baseline of skepticism about plain meaning or actual legislative intent, some minimal conception of legislative intent is necessary to make sense of a system founded on legislative supremacy. As Joseph Raz has insightfully noted, "It makes no sense to give any person or body law-making power unless it is assumed that the law they make is the law they intended to make." Joseph Raz, Intention in Interpretation, in THE AUTONOMY OF LAW 249, 258 (Robert P. George ed., 1996). As he explains: [T]o assume that the law made by legislation is not the one intended by the legislator, we must assume that he cannot predict what law he is making when the legislature passes any piece of legislation. But if so, why does it matter who the members of the legislature are, whether they are democratically elected or not, whether they represent different regions of the country, or classes in the population, whether they are adults or children, sane or insane? Since the law they will end by making does not represent their intentions, the fact that their intentions are foolish or wise, partial or impartial, self-serving or public spirited, makes no difference. Id. at 258-59. Professor Raz explains that one can have meaningful legislative supremacy if legislators intend to enact a law that will be decoded according to prevailing interpretive conventions. See id. at 268; infra text accompanying notes 38-39.
37. Jeremy Waldron, Legislators'Intentions and Unintentional Legislation, in LAW AND INTERPRETATION 329, 339 (Andrei Marmor ed., 1995); see also Gerald C. Mac Callum, Jr., Legislative Intent, 75 YALE L.J. 754, 758 (1966) ("The words [a legislator] uses are the instruments by means of which he expects or hopes to effect . . . changes [in society]. What gives him this expectation or this hope is his belief that he can anticipate how others (e.g., judges and administrators) will understand these words.").
38. Raz, supra note 36, at 268.
39. See id. at 267 ("Th[at] minimal intention is sufficient to preserve the essential idea that legislators have control over the law. Legislators who have the minimal intention know that they are, if they carry the majority, making law, and they know how to find out what law they are making.").
40. The following discussion is based on John F. Manning, What Divides Textualists from Purposwists?, 106 COLUM. L. REV. 70 (2006).
41. See id. at 79-91 (discussing tools of construction commonly used by the Supreme Court).
42. Methodological differences among the leading approaches are not trivial in practice, but do not affect the analysis of the difficulty of using nondelegation canons. The main dividing line on the present Supreme Court is between textualists, who emphasize the conventional semantic meaning of the enacted texts, and purposivists, who emphasize the goals that Congress sought to pursue in enacting the text. See id. at 91-108 (outlining the distinctions between the two mainstream approaches). Both camps, however, use some version of the "reasonable person" construct to describe the relevant interpretive task. Textualists thus look for the way "a skilled, objectively reasonable user of words" would have understood the statutory language. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y 59, 65 (1988); see also Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dissenting) ("We are to read the words of that text as any ordinary Member of Congress would have read them, and apply the meaning so determined." (citation omitted)); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3, 17 (Amy Gutmann ed., 1997) (arguing that an interpreter should search for "the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris"). The most influential version of modern purposivism - the legal process school developed by Professors Hart and Sacks - instructs interpreters to filter the same evidence through the assumption "that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably." HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
43. See Felix Frankfurter, Some Reflections on the Heading of Statutes, 47 COLUM. L. REV. 527, 527-28 (1947) ("When we talk of statutory construction we have in mind cases in which there is a fair contest between two readings, neither of which comes without respectable title deeds. A problem in statutory construction can seriously bother courts only when there is a contest between probabilities of meaning.") ; Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE L.J. 677, 694 (2007) (discussing interpretive decisions in terms of probabilities).
44. For a good working definition of statutory clarity, see infra note 52.
45. Professor Richard Pierce provides an instructive account of the types of "meaningless" regulatory standards sometimes adopted by Congress - including the "traditional empty standards," "lists of unranked decisional goals," and mutually "contradictory standards." See Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 TEX. L. REV. 469, 474-78 (1985). One might also find cases, though perhaps rare, in which the relevant evidence of meaning is essentially in equipoise. See Scalia, supra note 27, at 520-21 (arguing that competing interpretations are almost never in equipoise).
46. In other words, courts applying a nondelegation canon must sometimes reject what they regard as the more likely interpretation because it does not meet the higher threshold set by the nondelegation canon. The logical necessity for such an approach has been nicely articulated in the context of a much-studied nondelegation canon - the canon requiring avoidance of serious constitutional questions, where possible. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 358 (1998) (Scalia, J., concurring) (noting that "'[t]he doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one,'" for that "'would deprive the doctrine of all function'" (quoting Almendarez-Torres v. United States, 523 U.S. 224, 270 (1998) (Scalia, J., dissenting))); Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 89 ("[A]voidance is only important in those cases in which the result is different from what the result would have been by application of a judge's or court's preconstitutional views about how a statute should be interpreted.").
47. Along these lines, Gary Lawson has argued that interpreters can make such determinations and, in fact, do so in many contexts. See Gary Lawson, Proving the Law, 86 NW. U. L. REV. 859, 890-94 (1992).
48. In the context of another famous nondelegation canon - the rule of lenity - then-Judge Scalia suggested a similar problem. See United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985) (noting that the rule of lenity "provides little more than atmospherics, since it leaves open the crucial question - almost invariably present - of how much ambiguousness constitutes an ambiguity"); see also Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 582 (1990) ("I should think that the effort, with respect to any statute, should be neither liberally to expand nor strictly to constrict its meaning, but rather to get die meaning precisely right. Now that may often be difficult, but I see no reason, a priori, to compound the difficulty, and render it even more unlikely that the precise meaning will be discerned, by laying a judicial thumb on one or the other side of the scales. And that is particularly so when the thumb is of indeterminate weight. How 'liberal' is liberal, and how 'strict' is strict?").
49. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citation omitted) (first alteration and emphasis added) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963) ("The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons - either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained."); Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605, 611 (1926) ("The intention of Congress to exclude States from exerting their police power must be clearly manifested."); Reid v. Colorado, 187 U.S. 137, 148 (1902) ("It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested.").
50. Along these lines, Professor Sunstein has equated nondelegation canons with a requirement of statutory clarity. See Sunstein, supra note 1, at 330 ("These canons impose important constraints on administrative authority, for agencies are not permitted to understand ambiguous provisions to give them authority to venture in certain directions; a clear congressional statement is necessary."); see also, e.g., id. at 316 (noting that such canons provide that "federal administrative agencies may not engage in certain activities unless and until Congress has expressly authorized them to do so"); id. (noting that under the canon of avoidance, "Congress must clearly assert its desire to venture into the disputed terrain"); id. at 332 (noting that a civil statute will be applied retroactively only if Congress has made "that choice explicitly"); id. (noting that the rule of lenity requires the imposition of criminal sanctions to reflect "a clear judgment on Congress's part").
51. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534, 1543-46 (2007) (Breyer, J.) (finding the term "percentile" ambiguous because the statute did not specify the distribution against which the percentile was to be measured); id. at 1552-55 (Scalia, J., dissenting) (finding the statute to be clear); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 596-97 (2004) (Souter, J.) (holding that discrimination "because of . . . age" is ambiguous and may mean either disfavored because of a difference in age or disfavored because of more advanced age); id. at 603-04 (Thomas, J., dissenting) (arguing that the phrase is clear in context and takes on the "primary meaning" of difference in age).
52. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 187 (1986) (arguing that a statute is clear when "all or most persons, having the linguistic and cultural competence assumed by the authors of the text, would agree on its meaning").
53. For some prominent versions of rule skepticism, see, for example, James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. PA. L. REV. 685, 708-11, 728 (1985)
54. Of the traditional nondelegation doctrine, Professor Sunstein writes that "it is extremely difficult to defend the idea that courts should understand Article I, section 1 of the Constitution to require Congress to legislate with particularity." Sunstein, supra note 1, at 317. In the particular areas in which the Court applies nondelegation canons, however, the effect of a clear statement rule, successfully applied, would seem to require particularity - an explicit statement that Congress meant to disturb the particular value protected by the canon.
55. Framing any legal rule incurs the cost of obtaining and analyzing information about the rule's probable impact, and the cost of securing agreement among the participants in the . . . process. These costs usually rise with increases in a rule's transparency since objective regulatory line-drawing increases the risk of misspecification and sharpens the focus of value conflicts. Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 73 (1983).
56. See Gersen & Vermeule, supra note 43, at 697-98 (arguing that this sort of "second-order interpretation" may be "psychologically demanding for judges"). In a famous article, then-Judge Breyer predicted that the Chevron doctrine would be unstable because of its similar analytical structure. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 373-81 (1986). At step one, a court reviewing an agency interpretation of an organic act was to use the traditional tools of construction to determine if "Congress ha[d] directly spoken to the precise question in issue." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If not, the court was to accept the agency's "reasonable" interpretation even if the court would not have arrived at the same conclusion itself. Id. at 843 n.11, 845. As then-Judge Breyer explained: [S]uch a formula asks judges to develop a cast of mind that often is psychologically difficult to maintain. It is difficult, after having examined a legal question in depth with the object of deciding it correctly, to believe both that the agency's interpretation is legally wrong, and that its interpretation is reasonable. More often one concludes that there is a "better" view of the statute for example, and that the "better" view is "correct," and the alterna3 tive view is "erroneous." Breyer, supra, at 379. For a more detailed discussion of Chevron and its implications, see infra Part III.
57. As noted, Professor Lawson believes that judges successfully apply differential burdens of persuasion to statutory interpretation questions in many diverse contexts. See Lawson, supra note 47, at 869-70, 891-96.
58. See, e.g., S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 733 (1991) (describing the Court's devotion to this presumption as "fickle"); Calvin Massey, "Joltin' Joe Has Left and Gone Away": The Vanishing Presumption Against Preemption, 66 ALB. L. REV. 759, 764 (2003) ("[T]he Court . . . continues to simultaneously repeat and ignore the presumption against preemption."); Merrill, supra note 23 (manuscript at 21) (noting that "the presumption against preemption is honored as much in the breach as in the observance"); Nelson, supra note 23, at 298 ("The Court itself has applied the presumption only half-heartedly."); Sharkey, supra note 23 (manuscript at 110) ("I join a veritable chorus of scholars pointing out the Court's haphazard application of the presumption. In the realm of products liability preemption, the presumption does yeoman's work in some cases, while going AWOL altogether in others." (footnotes omitted)).
59. Along these lines, Professor Merrill has identified a number of cases in which the Court found preemption without invoking the presumption against preemption, even though the dissent argued that the presumption should resolve the case the other way. See Merrill, supra note 23 (manuscript at 21) (citing Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist, 541 U.S. 246 (2004); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001)). My colleague Daniel Meltzer, moreover, has suggested that the Supreme Court employs creative, purpose-oriented methods of interpretation more frequently in preemption cases than in run-of-the-mill cases not governed by such a presumption. See Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 362-68 (analyzing the interpretive method used in a series of Supreme Court preemption cases).
60. See, e.g., Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 4 (1998) ("When the Justices divide over interpretive methodology, they usually do so along a fault line between textualists and purposivists."); cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112 (1991) (Stevens, J., dissenting) ("In recent years the Court has vacillated between a purely literal approach to the task of statutory interpretation and an approach that seeks guidance from historical context, legislative history, and prior cases identifying the purpose that motivated the legislation.").
61. See, e.g., Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 823-31 (1982) (using social choice theory to examine aggregation problems on multimember courts) ; Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 102-16 (1986) (same); Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549, 554-64 (2005) (suggesting considerations that would cast doubt on the judiciary's capacity to achieve sustained coordination on interpretive issues).
62. Although a full examination of the Court's dice-loading canons lies beyond this Essay's scope, it is worth noting that others have identified the same judicial drift toward inconsistent application and ordinary statutory interpretation in the context of two other famous clear-statement approaches - the rule of lenity and the Chevron doctrine. The rule of lenity, which stretches to the earliest days of the Republic, of course provides that "penal laws are to be construed strictly." United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); see also, e.g., Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (noting that the rule of lenity requires that "ambiguous criminal statute[s] . . . be construed in favor of the accused"); Rewis v. United States, 401 U.S. 808, 812 (1971) (emphasizing that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity"). From early on, this maxim has had a nondelegation component. See, e.g., Wiltberger, 18 U.S. (5 Wheat.) at 95 (grounding the maxim, in part, "on the plain principle that the power of punishment is vested in the legislative, not in the judicial department"); see also United States v. Bass, 404 U.S. 336, 348 (1971) (emphasizing that "legislatures and not courts should define criminal activity"). As with the presumption against preemption, however, it is well accepted that the courts apply the rule of lenity inconsistently. See, e.g., Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345, 346 ("Judicial enforcement of lenity is notoriously sporadic . . . ."); Lawrence M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV. 57, 58 (1998) ("Although widely accepted, the rule [of lenity] is by no means adhered to universally."). Some believe that the maxim does no work in practice. See John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 199-200 (1985) ("[T]he construction of penal statutes no longer seems guided by any distinct policy of interpretation; it is essentially ad hoc."). Similarly, the Chevron doctrine functions like a prodelegation canon but calls for the same line drawing. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984). As discussed below, Chevron hinges on the judicial ability to draw a line between decisions expressly made by Congress and decisions resting on agency discretion derived from an ambiguous organic act. See infra text accompanying notes 66-72. Although full consideration of the practical success or failure of that framework is beyond this Essay's scope, it is worth noting that some commentators have found that the Court has effectively gutted Chevron by applying the tools of statutory interpretation aggressively to find congressional clarity even when the relevant evidence does not point clearly in one direction. See Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 754-62 (1995) (arguing that the Court is too quick to find that Congress has clearly addressed an issue that should, in fact, be viewed as sufficiently ambiguous to trigger Chevron deference); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429, 444-47 (same). Empirical studies have fallen on both sides of the question whether Chevron has affected judicial behavior. Compare, e.g., Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1059 (arguing that in its early years, Chevron had a significant effect on the behavior of the courts of appeals), with Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choke Theory and an Empirical Test, 69 S. CAL. L. REV. 431, 474-75 (1996) ("Our tests show that the Court does not uniformly endorse judicial deference, but rather does so discriminately in the years where the doctrine yields policy outcomes more to the Court's liking."), and Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 359 (1994) ("The most general finding of the survey [of Supreme Court cases preceding and postdating Chevron] was that Chevron had not made a dramatic difference in the frequency with which the Supreme Court deferred to agency interpretations of statutes."), and Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 826 (2006) (finding it "unclear" whether Chevron affects whatever the Justices' baseline tendency is to vote along the lines of their policy predispositions in statutory cases).
63. Of course, instead of calibrating degrees of ambiguity, one might try to implement nondelegation canons by eliminating particular elements of interpretation that facilitate interpreter discretion. At least sometimes, for example, the Supreme Court seems to rule out the use of legislative history to identify a clear statement. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 597 (1992); see also, e.g., Dellmuth v. Muth, 491 U.S. 223, 230 (1989) ("Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment."); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute."). One might ask whether such cases offer the potential for an alterative, and more judicially manageable, form of nondelegation canon. To be sure, some believe that a tool such as legislative history enhances an interpreter's discretion by permitting judges "to look out over the heads of the crowd and pick out [their] friends." Scalia, supra note 42, at 36 (attributing the quip to Judge Harold Leventhal). Others believe that legislative history confers no more discretion than other interpretive techniques - and may confer less. See, e.g., Eskridge, supra note 17, at 1547 (arguing that sources of textual meaning may give interpreters no less discretion than legislative history); Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 836 (1991) (arguing that reliance on legislative history may actually confine the open texture of statutory language). I have elsewhere suggested that some uses of legislative history do present nondelegation problems. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 697 (1997) (making such an argument about the use of legislative history as authoritative evidence of legislative intent). If, however, one takes seriously the nondelegation argument for excluding such tools of construction, the rationale does not seem easy to confine to the sphere of discrete nondelegation canons. Exploring that complex question is not necessary to address the simpler claim I advance here: holding one's method of interpretation constant, it entails arbitrary line drawing to identify the level of background ambiguity at which statutory outcomes cross the line from congressional choice to executory discretion.
64. See Sunstein, supra note 1, at 340.
65. See, e.g., Mendelson, supra note 23, at 755-58 (arguing that if agencies pay sufficient attention to the interest of states, federalism interests may not require courts to forebear from giving Chevron deference to agency interpretations of statutes that result in preemption); Merrill, supra note 23 (manuscript at 65) (contending that Chevron deference should apply only "where Congress has expressly delegated authority to the agency to preempt and the agency has exercised this delegated authority"); Sharkey, supra note 23 (manuscript at 166-73) (relying on comparative institutional competence to argue that reviewing courts should accept persuasive agency determinations that national uniformity is warranted on a particular regulatory issue).
66. See Sunstein, supra note 1, at 329 (describing Chevron as "the quintessential prodelegation canon").
67. The Court has confined Chevron to an agency's implementation of delegated authority to act with legally binding effect. See United States v. Mead Corp., 533 U.S. 218, 229-31 (2001).
68. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").
69. Id. at 843-44.
70. See, e.g., Richard J. Pierce, Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301, 307-08 (1988) (noting that ambiguity in an organic act creates space for the agency's exercise of policymaking discretion); Laurence H. Silberman, Chevron - The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 822 (1990) (same).
71. See Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 978 (1992) ("In order to make deference a general default rule, the Court had to come up with some universal reason why administrative interpretations should be preferred to the judgments of Article III courts. Democratic theory supplied the justification . . . ."); Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1256 (1989) (describing Chevron as "an effort to reconcile the administrative state with the principles of democracy"). The Chevron Court thus explained: Judges . . . are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. Chevron, 467 U.S. at 865-66; see also Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996) (ascribing Chevron deference to the "presumption that Congress . . . understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows").
72. See supra note 62.
73. See infra text accompanying notes 76-77.
74. Although not precisely analogous, the courts have relied on an agency's own request for deference as a way to establish the presence of legally decisive ambiguity in at least one other area. A central assumption of due process is that persons must be "free to steer between lawful and unlawful conduct." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Accordingly, legal rules must give persons of "ordinary intelligence a reasonable opportunity to know what is prohibited, so that [they] may act accordingly." Id. Where an agency attempts to impose a penalty or deny a benefit based on an interpretation of a regulation that it deems to be sufficiently ambiguous to warrant deference, the agency must be able to show that it has given the disadvantaged party specific advance notice of that interpretation. See, e.g., Ga. Pac. Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999, 1005-06 (11th Cir. 1994); Kropp Forge Co. v. Sec'y of Labor, 657 F.2d 119, 123-24 (7th Cir. 1981); Dravo Corp. v. Occupational Safety & Health Review Comm'n, 613 F.2d 1227, 1232 (3d Cir. 1980); Diamond Roofing Co. v. Occupational Safety & Health Review Comm'n, 528 F.2d 645, 649-50 (5th Cir. 1976). In effect, the agency's assertion of entitlement to deference is taken to be an acknowledgment of sufficient ambiguity to raise concerns about adequate notice.
75. See Sunstein, supra note 1, at 330 (arguing that, where applicable, nondelegation canons negate Chevron deference).
76. At least one commentator has argued that a reviewing court should review an agency's preemption decision under the intermediate deference framework of Skidmore v. Swift & Co., 323 U.S. 134 (1944), which directs judges to give an agency interpretation the "weight" warranted by "the thoroughness evident in its 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." Id. at 140; see Sharkey, supra note 23 (manuscript at 143-51). As discussed above, my sense is that if one were to take the idea of nondelegation canons seriously, the minimum requirement would be that reviewing courts decline to defer to agency decisions to preempt state law. See supra text accompanying notes 64-75.
77. See supra Part II.A.