Chevron's mistake

Duke Law Journal

Volumn 58, Issue 4, 2009, Pages 549-621

  Bressman, Lisa Schultz ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 63549085167     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (442)

1. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
2. See id. at 842, 843 n.9.
3. E.g., T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20, 24 (1988) ("[Intentionalists] would scrutinize the legislative materials to see if the legislature actually considered and expressed an opinion on the question under review.").
4. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 429 (1989) ("[For intent-based views,] the goal is not to look at a general legislative aim or purpose, but instead to see more particularly how the enacting legislature would have resolved the question, or how it intended that question to be resolved, if it had been presented."). The exception is a more "objective" version of this theory.
5. See, e.g., Cheryl Boudreau, Mathew D. McCubbins & Daniel B. Rodriguez, Statutory Interpretation and the Intentional(ist) Stance, 38 Loy. L.A. L. Rev. 2131, 2137-38, 2143-46 (2005) (focusing interpretation on the objective intentionality that words reflect).
6. E.g., Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 815 (1994) ("[P]urposivism calls on judges to identify the statute's broader purposes and to resolve the interpretive question in light of those purposes.").
7. see also, e.g., Henry M. Hart, Jr. & Albert Sacks, the legal process: basic problems in the making and application of law 166-67, 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1958) (focusing interpretation on the broader purposes embodied in statutes and asking courts to assume, "unless the contrary unmistakably appears," that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably").
8. E.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 68 (1994) ("Intent is empty. Peer inside the heads of legislators and you find a hodgepodge." (emphasis omitted)).
9. John F. Manning, Continuity and the Legislative Design, 79 Notre Dame L. Rev. 1863, 1864 (2004) ("[M]odern formalists (qua textualists) doubt that intent or purpose gleaned from the legislative history offers a reliable way to resolve statutory indefiniteness.").
10. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 684-89 (1997) [hereinafter Manning, Nondelegation Doctrine] (describing textualist arguments against "genuine legislative intent").
11. See generally Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 Va. L. Rev. 423, 453-57 (1988) (describing public choice insight behind textualism).
12. Kenneth A. Shepsle, Congress is a "They," Not an "It": Legislative Intent as Oxymoron, 12 Int'L Rev. L. & Econ. 239, 239 (1992) ("Legislative intent is an internally inconsistent, self-contradictory expression."). On textualism generally.
13. see William N. Eskridge, Jr., The New Textualism, 37 Ucla L. Rev. 621 (1989).
14. John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2390, 2408-19 (2002).
15. For a contrast between textualism and intentionalism. see John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Legislative Intent]. For a contrast between textualism and purposivism.
16. see Michael C. Dorf, The Supreme Court, 1997 Term-Foreword: The Limits of Socratic Dialogue, 112 Harv. L. Rev. 4, 14-26 (1997).
17. John F. Manning, What Divides Textualists from Purposivists, 106 Colum. L. Rev. 70 (2006).
18. E.g., Eskridge, supra note 5, at 646-50 (reviewing traditional textualist arguments that the use of legislative history distorts the separation of powers between Congress and the judiciary).
19. see also, e.g., Easterbrook, supra note 5, at 66 ("[The] text prevails over intent because only the text went through the constitutional process.").
20. Farber & Frickey, supra note 5, at 454-56 (describing Justice Scalia and Judge Easterbrook's constitutional objection that using legislative history circumvents the constitutional lawmaking process); Manning, Nondelegation Doctrine, supra note 5, at 711-19 (arguing that the use of legislative history cedes constitutional lawmaking authority from Congress as a whole to individual committees or members of Congress).
21. See, e.g., David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L. Rev. 947, 950 (1998)("[L]egislators will delegate in those issue areas where the normal legislative process is the least efficient relative to regulatory policymaking by executive agencies.").
22. See id. at 967.
23. See, e.g., William N. Eskridge, Jr., Dynamic Statutory interpretation 38 (1994) (asserting that legislators "create rather than avoid ambiguity" when necessary to avoid making choices that are unpopular with their constituents).
24. Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 Stan. L. Rev. 627, 641 (2002) ("[It] is not unusual for competing factions of Congress to 'agree to disagree' in the drafting of a statute.").
25. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 596 (2002) (interviewing legislative staffers who confirm that legislators use deliberate ambiguity to obtain consensus).
26. Richard A. Posner, Statutory Interpretation in the Classroom and the Courtroom, 50 U. Chi. L. Rev. 800, 811-12 (1983) (identifying the failure to agree as a cause of statutory ambiguity).
27. See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & ORG. 243, 246 (1987) [hereinafter McCubbins et al., Administrative Procedures].
28. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 442 (1989) [hereinafter McCubbins et al., Structure and Process].
29. See David Epstein & Sharyn O'Halloran, Delegating Powers 131-33 (1999).
30. See Nourse & Schacter, supra note 9, at 596-97.
31. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). ("[L]egislators will delegate in those issue areas where the normal legislative process is the least efficient relative to regulatory policymaking by executive agencies.").
32. See id. at 967.
33. See, e.g., William N. Eskridge, Jr., Dynamic statutory interpretation 38 (1994) (asserting that legislators "create rather than avoid ambiguity" when necessary to avoid making choices that are unpopular with their constituents).
34. Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 Stan. L. Rev. 627, 641 (2002) ("[It] is not unusual for competing factions of Congress to 'agree to disagree' in the drafting of a statute.").
35. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 596 (2002) (interviewing legislative staffers who confirm that legislators use deliberate ambiguity to obtain consensus).
36. Richard A. Posner, Statutory Interpretation in the Classroom and the Courtroom, 50 U. Chi. L. Rev. 800, 811-12 (1983) (identifying the failure to agree as a cause of statutory ambiguity).
37. See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 246 (1987) [hereinafter McCubbins et al., Administrative Procedures].
38. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 442 (1989) [hereinafter McCubbins et al., Structure and Process].
39. See David Epstein & Sharyn O'Halloran, Delegating Powers 131-33 (1999)
40. See Nourse & Schacter, supra note 9, at 596-97
41. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
42. See id. at 842, 843 n.9; see also Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 Yale. L.J. 676, 690-91 (2007) (noting that the traditional interpretive theories ask courts to construct a best meaning for ambiguous statutory language).
43. Grundfest & Pritchard, supra note 9, at 628 ("[J]udges and scholars have developed an arsenal of interpretive techniques that are designed to extract functional meaning from ambiguous statutory text and conflicting legislative history.").
44. Nourse & Schacter, supra note 9, at 617 ("[T]o the extent that intentionalism assumes a legislative intent always exists or that textualism assumes a deliberate and precise legislative word choice, these theories may rely on questionable empirical assumptions across the run of cases." (emphasis omitted)).
45. See, e.g., Epstein & O'Halloran, supra note 7, at 950 (arguing that legislators delegate when the legislative process produces less efficient outcomes than the administrative process).
46. Grundfest & Pritchard, supra note 9, at 640-42 (describing legislative incentives to delegate authority); Nourse & Schacter, supra note 9, at 596-97 (quoting legislative staffers discussing the political-consensus-building purposes of delegation).
47. United States v. Mead Corp., 533 U.S. 218 (2001).
48. Id. at 231-33.
49. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534 (2007).
50. Id. at 1541.
51. See, e.g., id. at 1551 (Kennedy, J., concurring) (worrying because the "opinion of the Court . . . inverts Chevron's logical progression").
52. Gonzales v. Oregon, 126 S. Ct. 904 (2006).
53. Id. at 925.
54. See id. at 917-22 (considering the relevant expertise of the agency, the moral nature of the question, and the procedures for issuing the interpretation).
55. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
56. Administrative law has long provided a basis for such review, for example, in the requirement of reasoned decisionmaking. See Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) (elaborating the requirement of reasoned decisionmaking).
57. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1446-81 (2005) (providing an empirical study of lower court cases).
58. Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo. Wash. L. Rev. 347 passim (2003) (showing confusion in D.C. Circuit cases trying to apply Mead).
59. See William N. Eskridge, Jr., No Frills Textualism, 119 Harv. L. Rev. 2041, 2044 (2006) (book review) (arguing against an institutionally simple interpretive proposal that generates normative costs).
60. United States v. Mead Corp., 533 U.S. 218, 239 (2001) (Scalia, J., dissenting).
61. The nondelegation doctrine reflects constitutional limits on Congress's ability to delegate regulatory authority to agencies. See Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1403-06 (2000) [hereinafter Bressman, Schechter Poultry at the Millennium] (encapsulating the history of the nondelegation doctrine). With the exception of two 1935 decisions, the Court has never applied the doctrine to ban a statutory delegation.
62. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935) (invalidating a statute under nondelegation doctrine).
63. Panama Refining Co. v. Ryan, 293 U.S. 388, 433 (1935) (same). It has merely insisted that Congress supply an "intelligible principle" in the statute guiding the agency's exercise of delegated authority.
64. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (articulating the intelligible principle requirement for the first time). Finding this requirement easily satisfied, the Court has relied on statutory interpretation to vindicate its abiding worries about broad delegations.
65. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 515-52 (2008) (describing constitutional law and administrative law as efforts to combat worries about arbitrary administrative decisionmaking that stem from broad delegations). More specifically, it has used various interpretive norms to narrowly construed broad statutory delegations.
66. See Bressman, Schechter Poultry at the Millennium, supra, at 1408-15 (describing the use of interpretive norms to constrain broad delegations)
67. Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2110-15 (1990) (discussing the emergence of clear statement principles as a surrogate for the nondelegation doctrine).
68. See, e.g., Aleinikoff, supra note 3, at 23 ("Intentionalism . . . claims that textualism inappropriately ignores contextual elements in statutory interpretation. Contextual analysis is necessary as a matter of semantics (words have no 'plain meaning'; meaning depends on context and usage).")
69. Sunstein, supra note 3, at 416 ("The central problem is that the meaning of words (whether 'plain' or not) depends on both culture and context. Statutory terms are not self-defining, and words have no meaning before or without interpretation.").
70. see also John F. Manning, Competing Presumptions About Statutory Coherence, 74 Fordham L. Rev. 2009, 2013-16 (2006) (describing the interpretive approaches of many thinkers, including Justice Stevens and Judge Posner, as reflecting this view of the legislative process).
71. See, e.g., Redish & Chung, supra note 4, at 816 ("[Purposivists] would also have their judges explore the entire legal landscape to determine how the statute at hand can best be made to fit within its greater legal context.").
72. Sunstein, supra note 3, at 430 (arguing that intentionalism can provide useful "context and purpose")
73. see also Stephen Breyer, Active Liberty 85 (1994) (describing purposivism as an approach under which "judges should pay primary attention to a statute's purpose").
74. Abner S. Greene, The Missing Step of Textualism, 74 Fordham L. Rev. 1913, 1916 (2006) ("Purposivists, or intentionalists, look at . . . legislative history and other background social understandings[]in an effort to figure out what Congress was up to.").
75. See, e.g., Hart & Sacks, supra note 4, at 1124 ("Every statute must be conclusively presumed to be a purposive act.").
76. See supra note 5 and accompanying text.
77. See Manning, Legislative Intent, supra note 5, at 441 ("[Textualists] believe that smoothing over the rough edges in a statute threatens to upset whatever complicated bargaining led to its being cast in the terms that it was.").
78. See supra note 5 and accompanying text.
79. See Manning, Nondelegation Doctrine, supra note 5, at 695-705 (arguing that the legislative history bypasses the Article I requirements of bicameralism and presentment).
80. John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71-74 (2001) (arguing that Article I requirements of bicameralism and presentment compel textualism).
81. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n.9 (1984).
82. Id. at 843-44.
83. Id. at 865.
84. See id.
85. United States v. Mead Corp., 533 U.S. 218, 233 (2001).
86. Id. at 230, 232.
87. Chevron, 467 U.S. at 842-43.
88. Id. at 843 n.9.
89. Id. at 842.
90. See, e.g., Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 Colum. L. Rev. 2027, 2132 (2002) ("[E]ven adherents to [Chevron] theory . . . acknowledge that the evidence of such enacting congressional intent is 'weak' and even 'fictional' . . . .").
91. Gersen & Vermeule, supra note 14, at 689 (noting that Justices and commentators have recognized that the presumption of legislative intent underlying Chevron is a "fiction" and agreeing with this view).
92. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 871-72 (2001) (noting that the presumption of legislative intent underlying Chevron deference "has been described by even [Chevron's] strongest defender [Justice Scalia] as 'fictional'").
93. See Chevron, 467 U.S. at 865. Many have expressed other views about Chevron, including the view that it is premised on congressional allocation of interpretive authority between agencies and courts.
94. See Merrill & Hickman, supra note 51, at 837; Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539, 587 (2005).
95. cf. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 472-74 (2002) (arguing that Congress once used a legislative convention to confer on agencies the authority to act with the force of law and that, when this convention fell out of use, courts adopted a deferential approach to determining whether Congress authorized an agency to act with the force of law). Although the literature conceptualizing Chevron is too vast to cite, other excellent examples include Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 Admin. L.J. Am. U. 187 (1992).
96. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253 (1997).
97. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 Geo. L.J. 2225 (1997).
98. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 Tex. L. Rev. 83 (1994).
99. Sunstein, supra note 29.
100. See United States v. Mead Corp., 533 U.S. 218, 218 (2001) (holding that congressional intent to delegate the authority to make rules with the force of law "may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking").
101. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U.L.Q. 351, 372 (1994).
102. See id.
103. See Gersen & Vermeule, supra note 14, at 697-98.
104. See id. at 693-97 (discussing the conceptual problems that arise when attempting to discern the limits of "reasonable" interpretation).
105. See id. at 697-98 (making use of Justice Scalia's opinion in MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994), to illustrate the tendency of courts to commit to one "right" interpretation when other reasonable interpretations are available).
106. Gersen & Vermeule, supra note 14, at 697 (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 379 (1986)).
107. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ("In these cases the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies." (footnotes omitted)).
108. See id. at 863-64 ("[T]he agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.").
109. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (holding that an agency interpretation may overrule a prior judicial interpretation only if the underlying statutory language is ambiguous).
110. See Susan Rose-Ackerman, Economics of Administrative Law, Economics of Law vi-xvii (2007) (summarizing the literature)
111. See, e.g., Epstein & O'Halloran, supra note 7, at 961 ("We assume the preferences of legislators and the President to be, first and foremost, reelection.").
112. Id. ("We assume that political actors who seek reelection will, on any given policy, attempt to bring final outcomes as close as possible to the median voter in their politically relevant constituency.").
113. Id. at 962; see also David Epstein & Sharyn O'Halloran, Administrative Procedures, Information, and Agency Discretion, 38 Am. J. Pol. Sci. 697, 699 (1994) (noting that a direct method of circumscribing agency influence is "explicitly limiting the discretion of an agency to move outcomes from the status quo").
114. Terry M. Moe, Political Institutions: The Neglected Side of the Story, 6 J.L. Econ. & Org. (Special Issue) 213, 228 (1990) ("The most direct way is for today's authorities to specify, in excruciating detail, precisely what the agency is to do and how it is to do it, leaving as little as possible to the discretionary judgment of bureaucrats . . . .").
115. See Epstein & O'Halloran, supra note 67, at 701.
116. David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 Geo. L.J. 97, 106-12 (2000).
117. B. Dan Wood & John Bohte, Political Transaction Costs and the Politics of Administrative Design, 66 J. Pol. 176, 176 (2004).
118. Epstein & O'Halloran, supra note 7, at 962.
119. Id. at 967 (footnote omitted).
120. See David Schoenbrod, Power without responsibility: how congress abuses the people through delegation 9-12, 49-57 (1993)
121. see also James Q. Wilson, Bureaucracy: what government agencies do and why they do it 235-256 (1989) (exploring how Congress exerts control over regulatory agencies through delegation and the legislative process).
122. Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 Cornell L. Rev. 1, 55-63 (1982) (dissecting and comparing several hypotheses that try to explain why Congress delegates power to agencies).
123. Morris P. Fiorina, Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?, 39 Pub. Choice 33, 46-52 (1982) (examining claims that Congress delegates power to regulatory agencies to shift both decisionmaking and political costs to the agency).
124. See Morris P. Fiorina, Legislator Uncertainty, Legislative Control, and the Delegation of Legislative Power, 2 J.L. Econ. & Org. 33, 44-55 (1986) (arguing that model legislators choose between two lotteries: one involving courts, whose decisions are expected to reflect the preferences of the median legislator, and one involving agencies, whose decisions are expected to be biased away from the intent of that legislator).
125. See Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 Harv. L. Rev. 1035, 1038, 1047-49 (2006).
126. See id. at 1049-58.
127. See Epstein & O'halloran, supra note 11, at 131-33.
128. See id.
129. See Epstein & O'Halloran, supra note 7, at 966.
130. See Epstein & O'halloran, supra note 11, at 154-55.
131. See generally Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 Va. L. Rev. 499, 501-04 (1989) (describing bureaucratic drift, which is the difference between policy passed in legislation and policy implemented by an agency, and coalitional drift, during which legislative and executive preferences change over time).
132. Kenneth A. Shepsle, Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey, 8 J.L. Econ. & ORG. 111, 113-16 (1992) (same).
133. See John D. Huber & Charles R. Shipan, Deliberate Discretion? the Institutional Foundations of bureaucratic autonomy 26 (2002) ("The principalagent framework from economics has played an extremely prominent and powerful role in [the] institutional approach to relations between politicians and bureaucrats.").
134. See Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267, 271 (John E. Chubb & Paul E. Peterson eds., 1989) ("Experts have their own interests-in career, in autonomy-that may conflict with those of [legislators]."); Epstein & O'Halloran, supra note 7, at 963.
135. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165, 166 (1984).
136. Id. at 166.
137. Id. at 173-74.
138. See McCubbins et al., Administrative Procedures, supra note 10, at 248; McCubbins et al., Structure and Process, supra note 10, at 442.
139. see also Rui J.P. de Figueiredo, Jr., Pablo T. Spiller & Santiago Urbiztondo, An Informational Perspective on Administrative Procedures, 15 J.L. Econ. & ORG. 238, 301 (1999) (modeling the functions of administrative procedures).
140. See McCubbins et al., Structure and Process, supra note 10, at 442.
141. Id. at 442, 444 (italics omitted).
142. See McCubbins et al., Administrative Procedures, supra note 10, at 254 ("[B]ecause policy is controlled by participants in administrative processes, political officials can use procedures to control policy without bearing costs themselves . . . .").
143. Epstein & O'Halloran, supra note 67, at 716 (emphasis omitted).
144. Kathleen Bawn, Choosing Strategies to Control the Bureaucracy: Statutory Constraints, Oversight, and the Committee System, 13 J.L. Econ. & ORG. 101, 101 (1997).
145. See, e.g., Eskridge, supra note 9, at 38 (noting that the simple "plain meaning" rule of textualism overlooks that "the goals of at least some of the authors are to create rather than avoid ambiguity").
146. Grundfest & Pritchard, supra note 9, at 641 ("[I]t is not unusual for competing factions of Congress to 'agree to disagree' in the drafting of a statute.").
147. Mathew D. McCubbins, The Legislative Design of Regulatory Structure, 29 Am. J. Pol. Sci. 721, 742-43 (1985) (asserting that legislators delegate when necessary to obtain consensus on policy).
148. Nourse & Schacter, supra note 9, at 596 (interviewing legislative staffers who confirm the use of deliberate ambiguity to obtain consensus); Posner, supra note 9, at 806-07 (identifying failure to agree as a cause of statutory ambiguity).
149. See Grundfest & Pritchard, supra note 9, at 641 ("Each constituency can hope that its position will ultimately prevail, and ambiguity thereby expands the circle of winners in legislative battles, at least temporarily.").
150. Robert A. Katzmann, The American Legislative Process as a Signal, 9 J. Pub. Pol'y 287, 290 (1989) ("A problem may be defined in general terms . . . because it is easier to secure support for ambiguously worded statutes that mean all things to all people.").
151. See Katzmann, supra note 95, at 290-91 ("Once a problem is identified or recognized, interests within and without Congress push for an interpretation consistent with their policy preferences, regardless of whether it is faithful to the original legislative intent.").
152. Id. at 290.
153. See Nourse & Schacter, supra note 9, at 596 (interviewing sixteen staffers working on the Senate Judiciary Committee or one of its subcommittees, who reported that legislative drafting involves "willful lack of clarity")
154. Id. at 596-97.
155. Id. at 596 ("This is . . . a political process. Sometimes one cannot allow the perfect to be the enemy of the good." (quoting a staffer discussing deliberate ambiguity)).
156. Id. at 596-97.
157. See Grundfest & Pritchard, supra note 9, at 650, 650-66 (describing the "legislative evolution" of the pleading standard used in the PSLRA)
158. See infra Part II.C.
159. Grundfest & Pritchard, supra note 9, at 650.
160. Id. at 652.
161. Id. (quoting Shields v. Citytrust BanCorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
162. Id. (quoting In re Glenfeld, Inc. Sec. Litig., 42 F.3d 1541, 1547 (9th Cir. 1994) (en banc)).
163. See id. at 652-53 ("The bill eventually passed by the House . . . codified recklessness as '[d]eliberately refraining from taking steps to discover whether one's statements are false or misleading.'" (quoting Securities Litigation Reform Act, H.R. 1058, 104th Cong. § 10A(a)(4) (as passed by the House, Mar. 8, 1995))).
164. See id. at 653 (explaining that the Senate banking committee report clearly stated an intent to adopt the Second Circuit standard).
165. See id. at 654 (asserting that Senator Specter's proposed amendment would have made the law rely more explicitly on the Second Circuit tests).
166. See id. at 655-57 (explaining that the language of the statement of managers section conflicts with a reasonable interpretation of the concededly vague language of footnote 23 in that same section).
167. Id. at 658 (internal quotation marks omitted).
168. See id. at 659.
169. Id. at 660.
170. See, e.g., id. at 667-77 (explaining that the final construction of the PSLRA prompted the appellate courts to interpret the strong inference standard using three different approaches); Nourse & Schacter, supra note 9, at 616-21 (describing potential flaws in judicial assumptions about legislative intent that belie the leading theories of statutory interpretation); Sunstein, supra note 3, at 411 ("[D]ebates about statutory interpretation, in and out of the judiciary, often dissolve into fruitless and unilluminating disputes about the constraints supplied by language 'itself' (as if such a thing could be imagined).").
171. Nourse & Schacter, supra note 9, at 619. Grundfest and Pritchard do not challenge judicial practice but note that it thrusts legislators into a game with courts over whose interpretive strategy ultimately will prevail. See Grundfest & Pritchard, supra note 9, at 670-72.
172. See supra Parts I.B-C.
173. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
174. Cf. W. Kip Viscusi, Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety, 6 Yale J. On Reg. 65, 76 (1989) (noting that the benefit of agency regulation (compared to tort litigation) increases "with the degree of specialization and complexity of data and with the greater general need for the information in the economy").
175. Cf. id. at 105 (arguing that "courts lack the scientific expertise to develop the necessary doctrines and causation rules relevant to multiple and probabilistic causation" in toxic tort cases).
176. Chevron, 467 U.S. at 865.
177. See supra text accompanying notes 68-71.
178. See supra text accompanying notes 72-73.
179. Kristin E. Hickman, of Lenity, Chevron, and KPMG, 26 Va. Tax Rev. 905, 923 (2007) ("As designated representatives of the people, members of Congress are both more in touch with communal perceptions of 'right' and 'wrong' and more accountable to the public for the moral judgments they make than agencies are. While the Supreme Court has not explicitly made this link, other courts and scholars have highlighted the moral element of criminalization as a further reason for not extending judicial deference to Justice Department interpretations of the criminal code.")
180. see also Breyer, supra note 31, at 107 (arguing that Congress is capable of making value judgments and so courts should not defer to agencies' judgments instead). Another possible example is private rights of action. The Court has held that courts, not agencies, must determine whether to imply such rights of action.
181. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50 (1990) (finding that Congress expressly delegated authority to courts to determine whether statutes confer private rights of action). Yet, even here, Congress can be deliberately ambiguous on the issue.
182. See Marc I. Steinberg, Implied Private Rights of Action Under Federal Law, 55 Notre Dame L. Rev. 33, 40 (1979). Furthermore, Professor Matthew Stephenson has argued that determining whether to imply a private right of action involves the sort of complex judgment that Congress might seek to avoid.
183. See Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 127-28 (2005). Thus, private rights of action may or may not be complex. Cf. id. at 148-70 (arguing that Chevron should automatically apply to agency determinations on this issue).
184. Chevron, 467 U.S. at 865.
185. See Grundfest & Pritchard, supra note 9, at 650-66; see also supra Part I.C. (explaining the academic hypothesis that the opposing factions on the "strong inference" issue agreed to ambiguous language, each hoping the Supreme Court would rule in its favor).
186. Grundfest & Pritchard, supra note 9, at 667-77.
187. See Samuel Issacharoff, Regulating After the Fact, 56 Depaul L. Rev. 375, 381 (2007) ("There is little dispute about the centrality of private actions in enforcing the complex web of securities law.").
188. Harvey L. Pitt & Karen L. Shapiro, Securities Regulation by Enforcement: A Look Ahead at the Next Decade, 7 Yale J. On Reg. 149, 206-08 (1990) (noting that the SEC's approach to insider trading relies on enforcement actions brought by the SEC and managed by lower courts).
189. But see James J. Park, The Competing Paradigms of Security Regulation, 57 Duke L.J. 625, 630 (2007) (noting that the SEC has issued rules in certain areas).
190. See supra text accompanying notes 80-82.
191. See supra text accompanying notes 111-15.
192. See supra text accompanying notes 83-90.
193. United States v. Mead Corp., 533 U.S. 218, 230 (2001).
194. Id. at 230, 232.
195. Barnhart v. Walton, 535 U.S. 212 (2002).
196. Id. at 222.
197. Mead, 533 U.S. at 230.
198. Barnhart, 535 U.S. at 222.
199. An agency cannot bootstrap itself into a delegation by using relatively formal procedures when Congress has not authorized those procedures. If the linchpin is legislative intent to delegate, then Congress must intend to provide the agency with interpretive authority. The agency's decision to afford Congress practical monitoring opportunities via procedures, even if beneficial on this ground or others, cannot cure the delegation deficiency.
200. See supra text accompanying notes 83-90.
201. Barnhart, 535 U.S. at 222.
202. See Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 33 (1983) ("[T]he judicial duty is to ensure that the administrative agency stays within the zone of discretion committed to it by its organic act.").
203. See Epstein & O'Halloran, supra note 67, at 701 (discussing statutes that, without dictating a single best policy, "did eliminate certain policies from consideration")
204. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534, 1543 (2007) ("A customs statute that imposes a tariff on 'clothing' does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike.").
205. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (understanding the nondelegation doctrine as entailing a statutory limit on delegations of authority to agencies).
206. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001) (acknowledging that although Congress, when delegating decisionmaking, must establish intelligible principles for agencies to follow, those principles only must provide minimal guidance)
207. Mistretta v. United States, 488 U.S. 361, 415-16 (1989) (Scalia, J., dissenting) (same).
208. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542, 541-42 (1935) (invalidating a statutory delegation that conferred "virtually unfettered" discretion on an agency)
209. Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935) (invalidating a statutory delegation for lacking standards).
210. Relatedly, when Congress instructs an agency to regulate x, it cannot decline to regulate one type of x. See Massachusetts v. EPA, 127 S. Ct. 1438, 1460 (2007) (finding that carbon dioxide is an "air pollutant" within the meaning of the Clean Air Act and therefore that the statute "forecloses" the EPA's contrary reading).
211. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (explaining that agency interpretations are valid unless "arbitrary, capricious, or manifestly contrary to the statute").
212. See 5 U.S.C § 706 (2006) ("The reviewing court shall . . . set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .").
213. See M. Elizabeth Magill, Step Two of Chevron v. Natural Resources Defense Council, in A Guide to Judicial and Political review of Federal Agencies 85, 96-102 (John F. Duffy & Michael Herz eds., 2005) (noting confusion among courts concerning the relationship between Chevron Step Two and APA arbitrary and capricious analysis and arguing that the two should mirror one another).
214. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 1005-07 (2007) (demonstrating that Chevron Step Two incorporates the reasoned decisionmaking requirement).
215. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 43 (1983) ("[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
216. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1777-78 (2007) (tracing the pre-APA roots of the reasoned decisionmaking requirement).
217. Id. at 1778-79 (describing the function of the reasoned decisionmaking requirement).
218. see also State Farm, 463 U.S. at 41 (listing considerations agencies might neglect).
219. See, e.g., State Farm, 463 U.S. at 42 (requiring the agency to explain the basis for its decision); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 419-20 (1971) (same).
220. See Bressman, supra note 161, at 1778-79.
221. See id. at 1779.
222. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
223. Id. at 140.
224. See Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 528, 531 (2006) (arguing that agencies, to secure approval for their interpretations from courts, choose textually plausible interpretations when they want to avoid the costs of issuing more aggressive interpretations through formal procedures that also satisfy courts).
225. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983-84 (2005).
226. See 20 U.S.C. § 7709(b) (2006).
227. Id. § 7709(b)(2)(A).
228. Id. § 7709(b)(2)(B)(i).
229. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 127 S. Ct. 1534, 1538-39 (2007).
230. Id. at 1538.
231. Id. at 1540 (quoting 20 U.S.C. § 7709(b)(1) (2000)).
232. Id. at 1537.
233. Id. at 1540.
234. Id. at 1541 (citation omitted).
235. Id. (quoting 20 U.S.C. § 7709(b)(1) (2000)).
236. Id. at 1541-42.
237. Id. at 1541.
238. Id. at 1543 ("[N]ormally neither the legislative history nor the reasonableness of the Secretary's method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary's interpretation.").
239. Id. at 1543-44.
240. Id. at 1545.
241. Id. at 1545-46.
242. Id. at 1546.
243. Id. at 1549-50 (Stevens, J., concurring); id. at 1550-51 (Kennedy, J., concurring); id. at 1551-59 (Scalia, J., dissenting); id. at 1559 (Souter, J., dissenting).
244. Id.at 1549-50 (Stevens, J., concurring).
245. Id. at 1550.
246. Id. (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)).
247. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
248. Zuni, 127 S. Ct. at 1550 (citing Church of the Holy Trinity, 143 U.S. at 459).
249. Id. at 1550-51 (Kennedy, J., concurring).
250. Id. at 1551.
251. Id. at 1551 (Scalia, J., dissenting).
252. Id. at 1553 (citation omitted).
253. Id. at 1554.
254. Id. (emphasis omitted) (quoting 20 U.S.C. § 7709(b)(2)(B)(i) (2000)).
255. Id. at 1554-55.
256. Id. at 1551.
257. Id. at 1556 (quoting id. at 1549 (Stevens, J., concurring)).
258. Id. at 1556-59. Justice Souter felt similarly constrained by the strict meaning of the text and joined that part of Justice Scalia's dissent, though not the broader defense of textualism.
259. See id. at 1559 (Souter, J., dissenting) (agreeing with the Court that "Congress probably intended, or at least understood, that the Secretary would continue to follow the methodology devised prior to passage of the current statute in 1994" but finding the language "unambiguous and inapt to authorize that methodology").
260. The parallels have some limits: Justice Breyer has stated that he would not defer to agency interpretations on "question[s] of national importance," including those that concern the scope of a statute, because Congress (or a reasonable member of Congress) would not intend to delegate these issues. Breyer, supra note 31, at 107. He has also stated that reasonable legislators would decide how to allocate interpretive authority to "help[] the statute work better . . . in both the functional and the democratic sense of the term," rather than for more strategic reasons. Id. at 108.
261. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823, 826 (2006) (reporting that Justice Breyer is "the most deferential justice in practice," whereas Justice Scalia is the least deferential)
262. see also Daniel J. Gifford, The Emerging Outlines of a Revised Chevron Doctrine: Congressional Intent, Judicial Judgment, and Administrative Autonomy, 59 Admin. L. Rev. 783, 785 (2007) (observing that Justice Breyer has "long favored . . . . mandatory deference in the more routine or interstitial interpretations, but not necessarily in matters at the core of the statutory design").
263. See Breyer, supra note 31, at 106 (arguing that courts should examine considerations beyond statutory language to determine what a "reasonable member of Congress" would intend when allocating interpretive authority); Stephen Breyer, Lecture, Our Democratic Constitution, 77 N.Y.U. L. Rev. 245, 267 (2002) (arguing that judges should vary how much deference they show to an agency interpretation based on how much deference Congress wanted courts to show). In addition to teaching and writing in administrative law before becoming a judge, Justice Breyer served as special counsel of the U.S. Senate Committee on the Judiciary and as chief counsel of the committee. The Justices of the Supreme Court, http://www.supremecourtus.gov/about/biographiescurrent.pdf (last visited Dec. 3, 2008).
264. Gonzales v. Oregon, 126 S. Ct. 904, 911 (2006).
265. Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001), invalidated by Gonzales, 126 S. Ct. at 925-26.
266. Gonzales, 126 S. Ct. at 913.
267. Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. at 56,608 (quoting 21 C.F.R. § 1306.04(a) (2001)).
268. Gonzales, 126 S. Ct. at 914 (quoting Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. at 56,608).
269. Id. at 916-22.
270. Id. at 910.
271. Id. at 916 ("All would agree, we should think, that the statutory phrase 'legitimate medical purpose' is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense.").
272. Id. at 921.
273. Id. (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001)).
274. Id. (citation omitted) (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).
275. See id. at 918 ("[T]he Attorney General claims extraordinary authority.").
276. Id. at 911.
277. See id. at 923 ("Oregon's regime is an example of the state regulation of medical practice that the CSA presupposes.").
278. Id. at 917.
279. See id. at 913 (noting that the attorney general did not consult the state or "anyone outside his Department").
280. See id. at 922 (deciding only that the attorney general may not "issue the Interpretative Rule as a statement with the force of law").
281. Id. at 921.
282. See id. ("[T]he authority claimed by the Attorney General is both beyond his expertise and incongruous with the statutory purpose and design.").
283. Id. at 917 (quoting 21 U.S.C.A. § 821 (Supp. V 2005)).
284. Id. at 921.
285. Id. (quoting Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 153 (1991)).
286. See id. ("The structure of the CSA . . . conveys unwillingness to cede medical judgments to an Executive official who lacks medical expertise.").
287. See id. ("The importance of the issue of physician-assisted suicide . . . makes the oblique form of the claimed delegation all the more suspect.").
288. See id. at 913 (noting that the attorney general issued the interpretative rule without consulting legislators).
289. See id. at 916 (finding that Auer and Chevron deference was unwarranted).
290. Id. at 922, 922-25 (applying Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
291. Id. at 922.
292. Id. at 923.
293. Id. at 912, 924.
294. Id. at 925.
295. Id. at 931 (Scalia, J., dissenting).
296. Id. at 931, 935.
297. Id. at 931 (quoting Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001)).
298. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 71-72 (1994) ("Because of their place in governance, agencies are both knowledgeable about and responsive to presidential and congressional preferences.")
299. Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why it Matters, 59 Admin. L. Rev. 673, 693 (2007) (noting that agencies interpret statutes in light of many nontextual considerations, including "the goals of public administration").
300. Herz, supra note 52, at 194 (observing that agencies may have participated in drafting, have an "institutional memory," and have more familiarity with statutory purposes).
301. Jerry L. Mashaw, Agency Statutory Interpretation, Issues in Legal Scholarship, Nov. 2002, art. 9, at 8-9, http://www.bepress.com/ils/iss3/art9 (noting that agencies consult legislative history and current political context, engaging in an interpretive process that is dynamic, because "[i]t is precisely their job as agents of past congresses and sitting politicians to synthesize the past with the present" (citing Ed Rubin, Dynamic Statutory Interpretation in the Administrative State, Issues In Legal Scholarship, Nov. 2002, art. 2, at 1, http://www.bepress.com/ils/iss3/art2)).
302. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1240 (2006) ("Because they have 'programmatic responsibility for implementing statutory regimes,' and because they interact frequently with Congress in the course of discharging that responsibility, agencies often have a very nuanced sense of congressional aims and statutory purpose." (footnotes omitted) (quoting Peter L. Strauss, When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi.-Kent L. Rev. 321, 321 (1990))).
303. Edward L. Rubin, Modern Statutes, Loose Canons, and the Limits of Practical Reason: A Response to Farber and Ross, 45 Vand. L. Rev. 579, 586 (1992) ("[A] legislature and the administrative agencies within the same jurisdiction are linked by an incredibly dense network of relationships and shared activities.").
304. See Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 150 (2006) ("[A]gencies may be better than courts at discerning and applying congressional intent."); cf. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 931 (2003) (advocating an institutional approach to Chevron that would envision agencies as choosing purposivism and courts as deferring to that judgment).
305. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ("[T]he Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference . . . .").
306. See id. ("While agencies are not directly accountable to the people, the Chief Executive is . . . .").
307. See Bressman, supra note 161, at 1804-13 (discussing political involvement in the administrative process).
308. See United States v. Mead Corp., 533 U.S. 218, 230, 231-33 (2001) ("Congress contemplates administrative action . . . when it provides for a relatively formal administrative procedure tending to foster [] fairness and deliberation . . . .").
309. See id. at 241, 245 (Scalia, J., dissenting) ("The principle effect [of the majority's decision] will be protracted confusion."). See generally Bressman, supra note 26 (suggesting confusion over Mead was worse than Justice Scalia had predicted).
310. Bressman, supra note 26, at 1444 (quoting Mead, 533 U.S. at 239, 261 (Scalia, J., dissenting)).
311. Mead, 533 U.S. at 239 (Scalia, J., dissenting).
312. Id. (citations omitted).
313. See Bressman, supra note 26, at 1458-64 ("[T]he courts can be sorted into two groups: those that consider Mead-inspired factors and those that consider Barnhart-inspired factors.").
314. See id. at 1459-61.
315. See id. at 1464-69 (describing how some courts "simply determine that lower-level Skidmore deference supports the agency's interpretation").
316. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005).
317. See Bressman, supra note 26, at 1469-74 (observing that courts are confusing explicit and implicit delegation questions under Mead.
318. See Bressman, supra note 161, at 1788-96 (drawing a connection between administrative procedures and legislative monitoring in Mead).
319. United States v. Mead Corp., 533 U.S. 218, 233 (2001).
320. See Bressman, supra note 161, at 1792; see also McCubbins et al., Administrative Procedures, supra note 10, at 257-59 (discussing how procedural requirements impact accessibility).
321. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 419-20 (1971) (considering an interpretation under a statute requiring "a public hearing conducted by local officials for the purpose of informing the community about the proposed project and eliciting community views on the design and route," followed by an administrative record containing an explanation of the decision). Interestingly, a harder case is a procedure that Mead approved for force-of-law purposes: formal adjudication. Formal adjudication does not permit legislative monitoring because neither constituents nor Congress may freely intervene. Yet it is possible to embrace Mead on this point. Congress, in designing the adjudicatory agencies, might have traded away the potential for legislative monitoring in favor of the sort of expertise that the adjudicatory model delivers-individualized consideration.
322. Cf. Bawn, supra note 92, at 105 ("Members of Congress choose not whether to use statutory provisions to control agencies but how much control to build into agency procedures at the possible expense of other goals like technical expertise, due process, and optimal use of information." (citations omitted)). Or Congress may have intended that the adjudicatory agencies would, to the extent possible, resolve interpretive questions through notice-and-comment rulemaking in advance of formal adjudication. The major adjudicatory agencies like the National Labor Relations Board and the Federal Trade Commission possess notice-and-comment rulemaking authority.
323. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1399 n.48 (2004). Those agencies have not always used their rulemaking power. See id. at 1399 & n.48 ("The NLRB and the FTC are known for their heavy reliance on adjudication . . . .").
324. Furthermore, Congress has seen fit to restrict their choice of procedures. But, as the Court has recognized, agencies cannot always foresee the need to issue interpretations in advance of adjudications. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.").
325. See Merrill & Hickman, supra note 51, at 845, 912-13 (arguing that the Court in Brown & Williamson addressed a question about the scope of the agency's jurisdiction and suggesting that the Court address such questions in future cases at Chevron Step Zero).
326. Professor Adrian Vermeule has argued that courts should look for stripped-down plain meaning and, finding none, accord deference to the agency interpretation because courts gain little benefit from probing other interpretive sources, including most textualist sources. Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 183-229 (2006)
327. see also Gersen & Vermeule, supra note 14, at 688-708 (advocating an approach that casts "Chevron as a voting rule," requiring consensus among the relevant decisionmakers as to the proper interpretation of a statute). My approach would not reintroduce the search for meaning even in limited form because it still asks a question that risks judicial misuse.
328. See Bressman, Schechter Poultry at the Millennium, supra note 29, at 1415-18 (collecting tools and principles that enable courts to address concerns about broad delegations as a matter of statutory construction rather than constitutional law).
329. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 338 (2000) (noting the judicial turn to nondelegation canons, which require a clear statement from Congress on policy issues).
330. See Schoenbrod, supra note 72, at 10.
331. See id. at 14-15 (noting that broad delegation permits agencies to regulate in ways that restrict individual liberty without a sufficiently public purpose); Bressman, Schechter Poultry at the Millennium, supra note 29, at 1416 (noting that a lack of statutory standards permits arbitrariness).
332. See, e.g., Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1385 (2001) (stating that a presumption against preemption forces Congress to provide states with notice of when their interests are at stake, enabling them to fight for protection in the legislative process).
333. But see Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. CT. Rev. 175, 182-87 (arguing that any clear rule-including the opposite presumption in favor of preemption-would provide states with notice, and arguing more generally that a presumption against preemption cannot be justified on any of the asserted grounds).
334. See Bressman, Schechter Poultry at the Millennium, supra note 29, at 1415-18 (collecting interpretive principles for narrowing broad delegations); Sunstein, supra note 287, at 338 (identifying certain canons of construction as means for narrowing broad delegations).
335. See, e.g., Manning, Nondelegation Doctrine, supra note 5, at 702-25.
336. See id. at 690-95 (arguing that the ultimate concern about legislative history is legislative self-dealing).
337. John F. Manning, Putting Legislative History to a Vote: A Response to Professor Siegel, 53 Vand. L. Rev. 1529, 1529 (2000) ("If the judiciary accepts certain types of legislative history (committee reports and sponsors' statements) as 'authoritative' evidence of legislative intent in cases of ambiguity, then the particular legislators who write that history (the committees and sponsors) effectively settle statutory meaning for Congress as a whole.").
338. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 521.
339. See Elhauge, supra note 51, at 2051-55 (describing many canons as useful for eliciting congressional responses).
340. Sunstein, supra note 287, at 338 (characterizing certain exceptions to Chevron as nondelegation canons that require a clear statement from Congress on policy issues).
341. see also Williams N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 388-89 (1991) (arguing that the rule of lenity helps to elicit congressional responses).
342. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Include the Legislative Process, 82 N.Y.U. L. Rev. 1, 18-37 (2007) (arguing that a presumption against preemption would improve the legislative process in general because state laws often bring critical issues to national attention that Congress might otherwise be inclined to avoid).
343. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. CT. Rev. 345, 346-47 (noting the argument that the rule of lenity serves a nondelegation function).
344. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994).
345. Id. at 224 (quoting 47 U.S.C. § 203(b)(2) (2000)).
346. See id. at 231 ("It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion-and even more unlikely that it would achieve that through such a subtle device as permission to 'modify' rate-filing requirements.").
347. FDA v. Brown& Williamson Tobacco Corp., 529 U.S. 120 (2000).
348. See id. at 160 ("[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.").
349. Whitman v. Am. Trucking Ass'ns., 531 U.S. 457, 468 (2001). Some scholars have agreed that certain questions are too significant for Congress to delegate through ambiguity.
350. See, e.g., Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2173-75 (2004) (arguing that agency interpretations of the scope of their own regulatory power should be given Skidmore, rather than Chevron, deference).
351. See Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 Depaul L. Rev. 227, 243 (2007) ("The regulatory preemption debate centers on the extent to which [agency interpretations] go beyond simply reciting the preemptive effect of the governing statute or regulation promulgated within the agency's delegated authority, and instead attempt to discern the proper scope of preemption with little or no direction from Congress.").
352. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("[W]e 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress.'" (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 715 (1985))).
353. Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 738-40 (2004) (describing cases).
354. See Medtronic, 518 U.S. at 485.
355. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001).
356. Id. at 172-73. For discussion and examples of the doctrine of avoidance, see Adrian Vermeule, Savings Constructions, 85 Geo. L.J. 1945, 1948-49 (1997).
357. See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 985 (2005) (suggesting that a court might employ the rule of lenity to declare a statute unambiguous, thereby precluding deference to the agency).
358. See Rachel E. Barkow, Originalists, Politics, and Criminal Law on the Rehnquist Court, 74 Geo. Wash. L. Rev. 1043, 1067 (2006) (characterizing the rule of lenity as a "common-law tradition").
359. Hickman, supra note 131, at 935 ("Lenity's status as an absolute constitutional requirement rather than a quasi-constitutional canon of construction is questionable.").
360. Kahan, supra note 295, at 346-47 (describing the rule of lenity as a "quasi-constitutional" doctrine).
361. See Kahan, supra note 295, at 346-47 (making these observations about the rule of lenity).
362. Many scholars do not rely on the association with legislative intent in defending the nondelegation canons.
363. See, e.g., Eskridge, supra note 27, at 2052-53 (noting the importance of "constitutional guideposts," including substantive and procedural fairness, when judges interpret criminal statutes).
364. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733, 1848-49 (2005) (defending a presumption against preemption as "a normative rule of construction, which means it cannot be grounded in some descriptive judgment about Congress's intent in enacting the relevant statute").
365. Congress may not even be able to distinguish between extraordinary and routine questions. See Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2606 (2006) ("[N]o simple line separates minor or interstitial from major questions.").
366. id. at 2604 (noting that the line between jurisdictional questions and others is "far from clear").
367. See MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 220-21 (1994) (cataloguing the development of FCC regulations restricting the monopoly power of dominant carriers).
368. See 21 U.S.C. § 371(e) (2006) (authorizing the FDA specifically to conduct notice-andcomment rulemaking). MCI Telecomms. Corp., 512 U.S. at 220-37 (acknowledging the authority of the FCC to conduct notice-and-comment rulemaking).
369. See FDA v. Brown & Williamson Tobacco Co., 529 U.S. 120, 137-38, 144-61 (2000) (consulting later-enacted statutes to confirm interpretation of a prior statute). Such evidence is arguably relevant to the reasonableness of the agency's interpretation. See Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 779-80 (2007). Elhauge, supra note 51, at 2148 (arguing that agency interpretations are not reasonable if they conflict with current enactable congressional preferences).
370. 12 U.S.C. § 371(a) (2006).
371. Id. § 24.
372. Ernest T. Patrikis & Glen R. Cuccinello, Supreme Court Extends Federal Preemption to National Bank Operating Subsidiaries, 124 Banking L.J. 512, 515 (2007).
373. 12 U.S.C. § 484(a) (2006).
374. 12 C.F.R. § 7.4006 (2006).
375. See Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1572-73 (2007).
376. See 12 C.F.R. § 5.34(e)(1) (2006); 31 Fed. Reg. 11,459, 11,459-60 (Aug. 31, 1966).
377. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007).
378. See id. at 1572.
379. See id.
380. Id. at 1570.
381. See Energy Independence and Security Act of 2007, Pub. L. No. 110-140, § 102(a)(2), 121 Stat. 1492, 1499.
382. See John M. Broder & Micheline Maynard, Deal in Congress on Plan to Raise Fuel Efficiency, N.Y. Times, Dec. 1, 2007, at A1.
383. See id.
384. See id.
385. See John M. Broder & Felicity Barringer, E.P.A. Says 17 States Can't Set Greenhouse Gas Rules for Cars, N.Y. Times, Dec. 20, 2007, at A1 (noting that, on the heels of the new fuel economy legislation, the EPA blocked California and other states from imposing their own standards and that the states plan to file a federal lawsuit to reverse that decision).
386. See, e.g., Rust v. Sullivan, 500 U.S. 173, 190-91 (1991) (refusing to invalidate an agency interpretation-the so-called abortion "gag rule"-even though it raised a possible First Amendment question); Mendelson, supra note 303, at 740 (noting inconsistency in the preemption context).
387. Caleb Nelson, Preemption, 86 VA. L. Rev. 225, 232 (2000) ("Most commentators who write about preemption agree on at least one thing: Modern preemption jurisprudence is a muddle.")
388. Sharkey, supra note 302, at 243 (stating that Congress has provided "little or no direction" in the preemption debate).
389. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) (requiring the agency to consider the relevant factors and remanding a rule that failed to do so).
390. See Bressman, Schechter Poultry at the Millennium, supra note 29, at 1415-31 (arguing that courts might withhold deference from agency interpretations that fail to articulate limiting standards); see also Stack, supra note 159, at 958 (arguing that the reasoned decisionmaking requirement may serve nondelegation norms).
391. See Merrill & Hickman, supra note 51, at 915 (arguing that the avoidance of questions canon expands the Court's authority beyond its constitutional limits and quoting Judge Posner, who says that the canon is therefore likely to "sharpen the tensions between the legislative and judicial branches" (quoting Richard A. Posner, the Federal Courts: Crisis and Reform 285 (1985))).
392. Frederick Schauer, Ashwander Revisited, 1995 Sup. CT. Rev. 71, 90-97 (advocating abandoning the avoidance of questions canon).
393. See Note, New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions, 120 Harv. L. Rev. 1604, 1605 (2007) (examining congressional responses to Supreme Court preemption decisions during the 1993 through 2003 Terms and concluding that "Congress almost never responds to the Court's preemption decisions, so mistaken interpretations for or against preemption are unlikely to be corrected").
394. See id.
395. See Lisa Schultz Bressman, Disciplining Delegation After Whitman v. American Trucking Ass'ns, 87 Cornell L. Rev. 452, 469-81 (2002) (describing the Court's angry response to the efforts of a D.C. Circuit judge to alter the nondelegation doctrine).
396. See supra text accompanying notes 268-69.
397. See supra text accompanying notes 270-71.
398. See supra text accompanying note 72.