The turn toward congress in administrative law

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 727-763

  Beermann, Jack M ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 67649644518     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (174)

1. 1 See generally Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61 (2006) [hereinafter Beermann, Congressional Administration] (examining the evolution and variety of Congress's involvement with administrative action).
2. 2 Megan Thee-Brenan, Poll Finds Disapproval of Bush Unwavering, N. Y. TIMES, Jan. 17, 2009, at Al 1 (discussing President Bush's historically low twenty-two percent approval rating).
3. 3 Dawn E. Johnson, What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B. U. L. REV. 395, 396-401 (2008) (describing the Bush Administration's expansive view of presidential power).
4. 4 549 U. S. 497 (2007).
5. 5 See generally Jack M. Beermann, The Supreme Common Law Court of the United States, 18 B. U. PUB. INT. L. J. 119 (2008) [hereinafter Beermann, The Supreme Common Law Court] (discussing the behavior of the Court as advancing its own agenda rather than deferring to other branches).
6. 6 Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 415 (1989).
7. 7 See Jack M. Beermann, Interest Group Politics and Judicial Behavior: Macey 's Public Choice, 67 NOTRE DAME L. REV. 183, 221-23 (1991) (examining influences on judicial preferences and judicial decision making).
8. 8 See Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 865-66 (1984). The Court explained:
9. Judges are not experts in the field, and 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.... 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.
10. Id.
11. 9 See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1751 (2007).
12. 10 549 U. S. 497 (2007).
13. 11 Id. at 510; see Clean Air Act § 202, 42 U. S. C. § 7251 (2000).
14. 12 5 U. S. C. § 553 (e) (2006).
15. 13 Massachusetts v. EPA, 549 U. S. at 509. No statute or rule required the EPA to seek comments on the petition. Agencies are free, however, to add to the procedures prescribed by Congress, and given the importance and complexity of the issues addressed in the petition, the Agency was wise to ask for comments before ruling on the petition. Note that courts may not require agencies to add to the procedures required by statute or rule, except in "extremely compelling circumstances" which thus far have never been found to exist. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U. S. 519, 543 (1978).
16. 14 Massachusetts v. EPA, 549 U. S. at 511 ("Greenhouse gases are accumulating in Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise." (quoting COMM. on the SCI. of CLIMATE CHANGE, NAT'L RESEARCH COUNCIL, CLIMATE CHANGE SCIENCE: AN ANALYSIS of SOME KEY QUESTIONS 1 (2001))).
17. 15 Id.
18. 16 Id.
19. 17 Id. at 512.
20. 18 Id. The Court found this argument persuasive for denying federal regulatory authority over tobacco products. FDA v. Brown and Williamson Tobacco Corp., 529 U. S. 120, 160 (2000).
21. 19 Massachusetts v. EPA, 549 U. S. at 513.
22. 20 Id.
23. 21 Id.
24. 22 Id.
25. 23 Id. (recognizing EPA's reliance on a National Research Council's report that articulated uncertainty regarding the impact of greenhouse gases).
26. 24 Id. at 513-14.
27. 25 See id. at 551 (Scalia, J., dissenting).
28. 26 Id. at 514 (majority opinion).
29. 27 42 U. S. C. § 7521 (a) (1) (2000) (emphasis added).
30. 28 Massachusetts v. EPA, 549 U. S. at 527-28 (citing Am. Horse Prot. Ass'n, Inc. v. Lyng, 812 F.2d 1, 3-4 (D. C. Cir. 1987)).
31. 29 Decisions not to take enforcement action against a particular alleged violator are presumptively unreviewable. Heckler v. Chaney, 470 U. S. 821, 832 (1985). They are reviewable only if the regulatory statute provides a clear statutory standard against which the reviewing court can measure the agency's decision not to take enforcement action. See id. at 833-35 (citing Dunlop v. Bachowski, 421 U. S. 560 (1975)).
32. 30 Massachusetts v. EPA, 549 U. S. at 527-28 (citations omitted).
33. 31 Id. at 528 (citing 42 U. S. C. §§ 7607 (b) (1), 7607 (d) (9) (2000)).
34. 32 Id.
35. 33 § 7607 (b) (1).
36. 34 Massachusetts v. EPA, 549 U. S. at 528.
37. 35 § 7607 (b) (1).
38. 36 See Massachusetts v. EPA, 549 U. S. at 514 n. 16 (citing § 7607 (b) (1)).
39. 37 See, e.g., Sierra Club v. EPA, 479 F.3d 875, 880 (D. C. Cir. 2007) (describing 42 U. S. C. § 7607 (b) (1) as "authorizing petitions for review of EPA's promulgation of emission standards").
40. 38 See, e.g., Tex. Mun. Power Agency v. EPA, 89 F.3d 858, 862 (D. C. Cir. 1996) ("We conclude that § 7607 (b) (1) is a matter of venue, not jurisdiction; since EPA raised no objection, the provision is no bar to our review.").
41. 39 See, e.g., Sierra Club v. EPA, 356 F.3d 296, 300 (D. C. Cir. 2004) ("Sierra Club now petitions for review of both actions pursuant to the jurisdictional grant of 42 U. S. C. § 7607 (b) (1).");
42. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 n. 10 (D. C. Cir. 2000) ("Our jurisdiction extends to 'any... nationally applicable... final action taken by' the EPA 'Administrator.'" (quoting § 7607 (b) (1))).
43. 40 Massachusetts v. EPA, 415 F.3d 50, 53-54 (D. C. Cir. 2005) ("EPA's denial of the rulemaking petition was therefore 'final action, ' and since the petition sought regulations national in scope, § [7607 (b) (1)] confers jurisdiction on this court to hear these consolidated cases." (citations omitted)), rev'd, 549 U. S. 497 (2007).
44. 41 See id. at 53 (citing 42 U. S. C. § 7607 (b) (1)).
45. 42 See WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D. C. Cir. 1981) ("[W]e hold that, except where there is evidence of a 'clear and convincing legislative intent to negate review, ' an agency's denial of a rulemaking petition is subject to judicial review." (quoting Natural Res. Def. Council v. SEC, 606 F.2d 1031, 1043 (D. C. Cir. 1979))).
46. 43 Massachusetts v. EPA, 549 U. S. 497, 528 (2007).
47. 44 WWHT, 656 F.2d at 809.
48. 45 See Heckler v. Chaney, 470 U. S. 821, 830-31 (1985) ("[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for 'abuse of discretion. "' (quoting 5 U. S. C. § 706 (2006))).
49. 46 Id. at 832 (comparing an agency decision not to act with a prosecutor's decision not to prosecute).
50. 47 Id. at 831.
51. 48 Id. These reasons do not appear to be related to whether law exists governing the agency decision, but elsewhere in its discussion, the Court made it clear that the lack of law to apply to evaluate the agency's exercise of discretion concerning these issues was the basis for the decision against review. See id. at 830-31.
52. 49 Id. at 832-33.
53. 50 See Dunlop v. Bachowski, 421 U. S. 560, 572 (1975). This is why Justice Scalia's assertion in his separate opinion in Webster v. Doe, 486 U. S. 592, 607 (1988) (Scalia, J., dissenting), that Heckler imposed a categorical bar to review of enforcement decisions is clearly wrong. Unfortunately, he later convinced the majority of the Court to adopt his erroneous view. See Lincoln v. Vigil, 508 U. S. 182, 192 (1993) (describing allocation of funds from a lump-sum appropriation as a category of action that is traditionally regarded as committed to agency discretion by law and is thus unreviewable).
54. 51 Massachusetts v. EPA, 549 U. S. 497, 527 (2007) (quoting Am. Horse Prot. Ass'n, Inc. v. Lyng, 812 F.2d 1, 4 (D. C. Cir. 1987)).
55. 52 See supra note 27 and accompanying text; see also 42 U. S. C. § 7521 (a) (1) (2000) (authorizing the EPA Administrator to set emission standards for air pollutants "which in his judgment cause, or contribute to air pollution").
56. 53 See Brief for the Federal Respondent at 37-38, Massachusetts v. EPA, 549 U. S. 497 (No. 05-1120), 2006 WL 3043970 ("Chaney held that an agency's refusal to commence an enforcement proceeding is not ordinarily subject to judicial review at all." (citing Heckler v. Chaney, 470 U. S. 821, 828-35 (1985))).
57. 54 The EPA also concluded that global warming gases are not air pollutants. In its view, air pollutants are those things that dirty the air when they are released, not substances that cause problems when they collect in the upper atmosphere. Massachusetts v. EPA, 549 U. S. at 513. The majority rejected this conclusion in a footnote, characterizing it as "a plainly unreasonable reading of a sweeping statutory provision. " Id. at 529 n. 26.
58. 55 Id. at 532-33 (quoting § 7251 (a) (1)).
59. 56 Jody Freeman and Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 52 ("Expertise-forcing is the attempt by courts to ensure that agencies exercise expert judgment free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies.").
60. 57 5 U. S. C. § 706 (2) (A) (2006) (stating that a court should set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law");
61. see, e.g., Deborah C. Fliegelman, Comment, The FDA and RU486: Are Politics Compatible with the FDA 's Mandate of Protecting Public Health and Safety?, 66 TEMP. L. REV. 143, 152 (1993) ("The FDA's consideration of irrelevant factors may constitute arbitrary and capricious abuse of discretion because irrelevant factors generally indicate a decision inconsistent with the agency's goals.").
62. 58 See Freeman and Vermeule, supra note 56, at 52.
63. 59 Massachusetts v. EPA, 549 U. S. at 549-50 (Scalia, J., dissenting).
64. 60 Brief for the Federal Respondent in Opposition at 20, Massachusetts v. EPA, 549 U. S. 497 (No. 05-1120), 2006 WL 1358432 ("In the absence of any such statutory constraints, EPA has discretion to make the threshold determination of whether the scientific record is sufficiently well developed to begin the regulatory process.");
65. see supra note 53 and accompanying text.
66. 61 Massachusetts v. EPA, 549 U. S. at 550 (Scalia, J., dissenting).
67. 62 Id. at 533 (majority opinion) ("To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design. ").
68. 63 I leave to one side the question of the appropriate standard of review in these cases. The Supreme Court has stated that the standard of review both for decisions not to undertake rulemaking and decisions not to take enforcement action (where the decision is reviewable because statutory standards are present) is very deferential - much more than the usual understanding of the arbitrary and capricious test. See id. at 527 (stating that discretion given to agencies "is at its height when the agency decides not to bring an enforcement action, " and that review of an agency's refusal to promulgate a rule is '"extremely limited' and 'highly deferential.'" (quoting Nat'l Customs Brokers and Forwarders Ass'n of Am. v. United States, 883 F.2d 93, 96 (D. C. Cir. 1989)));
69. Dunlop v. Bachowski, 421 U. S. 560, 572-73 (1975) ("[T]he court's review should be confined to examination of the 'reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious."). This allows for a great deal of discretion for agency application of statutory standards governing decisions in these areas and thus reduces the degree of actual congressional control.
70. 64 A Westlaw search of Chevron's U. S. Reports citation in the Journals and Law Reviews database, conducted on April 6, 2009, returned 3991 documents.
71. 65 I agree with Linda Jellum that Chevron no longer has much of an affect on statutory interpretation. See Linda Jellum, Chevron's Demise: A Survey of Chevron from Infancy to Senescence, 59 ADMIN. L. REV. 725, 730 (2007) ("Chevron is becoming less relevant today for three reasons: first, the case is cited far less frequently by the Court; second, the Court has created a new step in the process, which limits Chevron's application; and, third, the Court has limited one of the rationales supporting Chevron's holding, namely, implicit delegation. "). In my view, this is due to the principle that everyone - courts and agencies - should follow Congress's intent as best as possible when construing statutes.
72. 66 See Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842-43 (1984).
73. 67 Id.
74. 68 Id. ("If the intent of Congress is clear, that is the end of the matter....").
75. 69 Id. at 843; see Household Credit Servs., Inc. v. Pfennig, 541 U. S. 232, 239 (2004).
76. 70 See, e.g., Household Credit Servs., 541 U. S. at 244 (upholding the Federal Reserve Board's construction because it was "rational").
77. 71 By "exact issue" what I mean is that the statute answers the precise question under review in so many words. For example, in Chevron, the issue was whether the EPA could use what is referred to as the "bubble" concept and count all pollution-emitting elements of an industrial complex as a "stationary source." Chevron, 467 U. S. at 840. On the narrowest view of Step One, the only way the case would be resolved in Step One would be if the statute actually mentioned the bubble concept, for example by stating explicitly that "the EPA may treat all of the sources of air pollutants in an industrial complex as a single stationary source."
78. 72 5 U. S. C. § 706 (2006).
79. 73 See, e.g., Skidmore v. Swift and Co., 323 U. S. 134, 140 (1944) (prescribing deference to informal agency interpretations on a sliding scale based on a consideration of the totality of the circumstances);
80. NLRB v. Hearst Publ'ns, Inc., 322 U. S. 111, 130-32 (1944) (affording no deference on abstract questions of law but prescribing strong deference on applications of law to particular facts in formal agency hearings);
81. United States v. Am. Trucking Ass'ns, 310 U. S. 534, 544 (1940) (calling statutory interpretation "exclusively a judicial function");
82. Norwegian Nitrogen Prods. Co. v. United States, 288 U. S. 294, 314-15 (1933) (deferring to agency statutory construction).
83. 74 5 U. S. C. § 706.
84. 75 Cf. Thomas W. Merrill and Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 501-02 (2002) (describing the pre-APA conventional understanding that when Congress prescribes the penalty for violating a duly enacted agency rule, the agency rule is thought to have "force of law, " meriting deference).
85. 76 See William S. Jordan III, Chevron and Hearing Rights: An Unintended Combination, 61 ADMIN. L. REV. (forthcoming 2009) (manuscript at 54-63, on file with author) (describing the development of the Court's approach to deciding when to apply Chevron).
86. 77 See generally Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006) (describing the development and application of Chevron Step Zero).
87. 78 See Christensen v. Harris County, 529 U. S. 576, 596-597 (2000) (Breyer, J., dissenting) ("Chevron-type deference is inapplicable... where one has doubt that Congress actually intended to delegate interpretive authority to the agency....").
88. 79 United States v. Mead Corp., 533 U. S. 218, 230-31 (2001) ("[W]e have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded....").
89. 80 See Sunstein, supra note 77, at 214 (explaining that if statutes give agencies "relatively formal procedures, " then Chevron deference should apply).
90. 81 See Mead Corp., 533 U. S. at 230 ("It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force."). The citation in the footnote attached to this statement is to an article by Thomas W. Merrill and Kristin E. Hickman, but only for the point that Congress's intent should govern; it provides no support for the argument that procedural formality is indicative of Congress's intent. See id. at 230 n. 11 (citing Thomas W. Merrill and Kristin E. Hickman, Chevron's Domain, 89 GEO. L. J. 833, 872 (2001)).
91. 82 See Skidmore v. Swift and Co., 323 U. S. 134, 139-40 (1944) (mentioning lack of procedural formality as a factor against deference but then going on to state that lack of adversary proceedings does not mean that agency interpretation is "not entitled to respect").
92. 83 See Merrill and Watts, supra note 75, at 580.
93. 84 Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842 (1984);
94. see supra note 71 and accompanying text.
95. 85 INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987).
96. 86 See generally Dole v. United Steelworkers of Am., 494 U. S. 26 (1990).
97. 87 See 44 U. S. C. §§ 3501-3521 (2000).
98. 88 See United Steelworkers, 494 U. S. at 41-42.
99. 89 Brief for the Petitioners at 29, United Steelworkers, 494 U. S. 26 (No. 88-1434) ("OMB's interpretation is clearly reasonable and entitled to judicial deference." (citing Chevron, 467 U. S. at 837)).
100. 90 United Steelworkers, 494 U. S. at 42.
101. 91 In fact, the Court's only citation to Chevron was for the point that "[i]f the intent of Congress is clear, that is the end of the matter." Id. at 43 (quoting Chevron, 467 U. S. at 842). The dissenters complained that it took the Court "more than 10 pages, including a review of numerous statutory provisions and legislative history, to conclude that the Paperwork Reduction Act of 1980... is clear and unambiguous." Id. (White, J., dissenting). The implication is that under the original, narrower version of Step One, anytime lengthy exposition is necessary, the Court should find ambiguity and move to Step Two.
102. 92 MCI Telecomm. Corp. v. Am. Tel. and Tel. Co., 512 U. S. 218, 234 (1994) (stating that the FCC's interpretation introduces "a whole new scheme of regulation" which was "not the one that Congress established").
103. 93 FDA v. Brown and Williamson Tobacco Corp., 529 U. S. 120, 126 (2000) ("In this case, we believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products."). For a discussion of the extraordinary cases version of Chevron, see Sunstein, supra note 77, at 241.
104. 94 MCI, 512 U. S. at 225.
105. 95 Brown and Williamson, 529 U. S. at 143-59.
106. 96 See supra note 71 and accompanying text.
107. 97 For a spirited defense of a different version of the extraordinary cases Chevron Step One doctrine, see generally Abigail R. Moncrieff, Reincarnating the "Major Questions" Exceptions to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. 593 (2008).
108. Moncrieff argues that "major questions" should be answered by Congress, and thus when the statute does not speak clearly to an important question, courts should not presume that an agency has been delegated the authority to act.
109. Id. at 634. Moncrieff further argues that under her "Major Cases" exception to Chevron, the Supreme Court should have approved of EPA's decision not to treat global warming gases as air pollutants because the general words of the Clean Air Act were not sufficient to grant the EPA the power to decide to regulate greenhouse gases as air pollutants.
110. Id. at 597.
111. 98 Looking beyond the bare words of the statute does not necessarily mean the court will overrule the agency. In fact, a court determined to affirm agency interpretations could decide every case in Step One in favor of the agency, essentially beating back all challenges to agency interpretations by answering that Congress's intent compels the agency's interpretation, which, as we learned in Chevron, is "the end of the matter." Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842 (1984).
112. However, if a court is going to approve an agency interpretation, it is simpler for the court to do so by simply finding the agency interpretation reasonable, thereby avoiding the more difficult question of whether the agency's interpretation is the only permissible one. Thus, most of the time, judicial willingness to look beyond statutory language in Step One makes it more likely that the agency interpretation will be rejected as the court constructs statutory meaning from sources other than the text of the statute.
113. 99 See generally Beermann, The Supreme Common Law Court, supra note 5.
114. 100 For a discussion of one such area, civil rights, see generally Jack M. Beermann, The Unhappy History of Civil Rights Litigation, Fifty Years Later, 34 CONN. L. REV. 981 (2002) (describing both the Court's expansionist role and obstructionist role in the area of civil rights).
115. 101 In one study of agency practice after Chevron, the author concluded that the agency took Chevron as a license to be much "more adventurous when interpreting and elaborating statutory law, " not as a reason to pay more attention to congressional intent. See E. Donald Elliot, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Environmental Law, 16 VILL. ENVTL. L. J. 1, 3 (2005).
116. 102 See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U. S. 519, 524 (1978).
117. 103 Id. at 543.
118. 104 Id. at 546 ("Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.").
119. 105 See id. at 545-46 (discussing legislative reports on the APA).
120. 106 See Jack M. Beermann and Gary S. Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 882-901 (2007) (discussing examples of the "wide range of contemporary doctrines" which violate Vermont Yankee).
121. 107 See United States v. Klein, 80 U. S. (13 Wall.) 128, 148 (1871) (holding that Congress may not alter the legal effect of a presidential pardon).
122. 108 Robertson v. Seattle Audubon Soc'y, 503 U. S. 429, 433-35 (1992).
123. 109 See Department of the Interior and Related Agencies Appropriations Act of 1990, Pub. L. No. 101-121, § 318 (b) (6) (A), 103 Stat. 701, 747 (1989) (citing within the statute "consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc, et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR");
124. Robertson, 503 U. S. at 431-35 (describing the underlying cases and quoting portions of the Act).
125. 110 See Robertson, 503 U. S. at 438-39 ("We conclude that subsection (b) (6) (A) compelled changes in law, not findings or results under old law."). In most states, there would be a strong argument for unconstitutionality under state constitutional "special legislation clauses" which require legislatures to enact only general laws and prohibit laws that are too specific. See, e.g., III. CONST, art. IV, § 13 ("The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination. "). The United States Constitution and the constitutions of the New England states do not contain special legislation clauses.
126. 111 Robertson, 503 U. S. at 440.
127. 112 See Dunlop v. Bachowski, 421 U. S. 560, 568 (1975) ("[C]ourts 'are necessarily [not] without power or jurisdiction... if it should clearly appear that the Secretary has acted in an arbitrary and capricious manner by ignoring the mandatory duty he owes plaintiffs under the power granted by Congress.'" (quoting DeVito v. Shultz, 300 F. Supp. 381, 382 (D. D. C 1969)));
128. see also supra note 50 and accompanying text.
129. 113 See Webster v. Doe, 486 U. S. 592, 607 (1988) (Scalia, J., dissenting).
130. 114 42 U. S. C. §§ 4321-4347 (2000).
131. 115 See Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U. S. 223, 228 (1980).
132. 116 42 U. S. C. § 4332 (2) (C) (i).
133. 117 See, e.g., J. I. Case Co. v. Borak, 377 U. S. 426, 431 (1964) (recognizing federal jurisdiction for a private right of action for violations of a federal securities statute which did not expressly grant a private right of action).
134. 118 As the Court stated very recently: "Though the rule once may have been otherwise,... it is settled that there is an implied cause of action only if the underlying statute can be interpreted to disclose the intent to create one." Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761, 772 (2008) (citing J. I. Case Co., 377 U. S. at 432-33).
135. 119 See Cannon v. Univ. of Chi., 441 U. S. 677, 747 (1979) (Powell, J., dissenting) ("[T]he implication of a right of action not authorized by Congress denigrates the democratic process.").
136. 120 See, e.g., Hamdan v. Rumsfeld, 548 U. S. 557, 567 (2006) (holding military commissions unlawful because they were inconsistent with federal and international law).
137. 121 See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 193-95 (1999) (holding unlawful and unauthorized an 1850 executive order requiring American Indians to leave lands recognized by a treaty as theirs);
138. Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579, 585-89 (1952) (holding unlawful an executive order requiring the Secretary of Commerce to seize steel mills in wartime).
139. 122 See Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1008 (2008).
140. 123 See Geier v. Am. Honda Motor Co., 529 U. S. 861, 868 (2000) (finding preemption even though Congress explicitly provided that "'[compliance with' a federal safety standard 'does not exempt any person from any liability under common law.'" (quoting 15 U. S. C. § 1397 (k) (1988) (repealed 1994)).
141. 124 See Mary J. Davis, The Battle over Implied Preemption: Products Liability and the FDA, 48 B. C. L. REV. 1089, 1111-19, 1134, 1142-44 (2007) (discussing federal regulation and state tort law in the area of drug labeling).
142. 125 See id. at 1095 (characterizing agency preemption policy as "new" in 2004);
143. Evelyn Pringle, Daniel Troy - Bush Administration's Preemption Gang - Part II, LAWYERSANDSETTLEMENTS.COM, Feb. 26, 2008, http://www.lawyersandsettlements.com/articles/10030/bush-preemption-troy. html.
144. 126 Compare Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U. S. 765, 771-74, 778 (2000) (allowing standing for an uninjured party to pursue a False Claims Act action against a state agency in the name of the United States), with Lujan v. Defenders of Wildlife, 504 U. S. 555, 578 (1992) (holding that an uninjured party lacked standing to pursue a citizens suit against a federal agency).
145. 127 See Defenders of Wildlife, 504 U. S. at 561 ("It must be 'likely' as opposed to merely 'speculative, ' that the injury will be 'redressed by favorable decision. '" (quoting Simon v. E. Ky. Welfare Rights Org., 426 U. S. 26, 38, 43 (1976))).
146. 128 See id. at 572 n. 7 ("Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.").
147. 129 See id. ("The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.").
148. 130 Id. at 560-61, 572 n. 7 (stating that the three general requirements of standing are injury, immediacy, and redressability, but that for procedural rights only the first of these is required).
149. 131 See DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES the PEOPLE THROUGH DELEGATION 20 (1993).
150. 132 Massachusetts v. EPA, 549 U. S. 497, 527 (2007).
151. 133 APA § 555 (e) requires agencies to provide a prompt response to a petition filed "in connection with any agency proceeding, " but it is not clear that if a member of the public simply files a petition requesting a rulemaking that the petition is "in connection with" any proceeding. 5 U. S. C. § 555 (e) (2006).
152. 134 Massachusetts v. EPA settled the matter, but the APA is not clear on the issue. See supra notes 62-63 and accompanying text. The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U. S. C. § 704. Often, agencies respond to petitions by stating that the matter is still under consideration and rulemaking (or other action) would be premature. It is unclear whether such a response should be treated as a final denial of the petition subject to review under the APA. For the difficulty in determining whether tentative answers to petitions are reviewable, see Pub. Citizen Health Research Group v. Chao, 314 F.3d 143, 159 (3d Cir. 2002) (granting a request compelling OSHA to formulate a rule on hexavalent chromium because OSHA's delay in its rulemaking "exceeded the bounds of reasonableness");
153. Envtl. Def. Fund, Inc v. Ruckelshaus, 439 F.2d 584, 592-97 (D. C. Cir. 1971) (permitting judicial review of the Secretary's refusal to issue cancellation notices and, though showing some deference to the agency, permitting judicial review of the Secretary's decision to deny interim suspension of DDT registration);
154. and Envtl. Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1099-1100 (D. C. Cir. 1970) (permitting judicial review of the Secretary of Agriculture's delay in responding to a request for interim suspension of registration for the chemical DDT, but denying judicial review for his delay in responding to a request for complete suspension).
155. 135 See Randall v. Sorrell, 548 U. S. 230, 236-37 (2006) (striking down state campaign contribution and expenditure limitations);
156. Buckley v. Valeo, 424 U. S. 1, 12-59 (1976) (upholding federal individual campaign contribution limits while striking down expenditure limits).
157. 136 It does not look good for consensus on campaign finance reform at this very moment. On November 13, 2008, the Republican Party sued the Federal Election Commission to ease restrictions on coordinated spending between parties and candidates. See Stephen Dinan, GOP's McCain-Feingold Suit Looks to Supreme Court, WASH. TIMES, Nov. 14, 2008, at A6. The restrictions are based on the McCain-Feingold campaign finance law. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) (codified at 2 U. S. C. §§ 431-455 (2006)). It is not surprising that the party waited until after the presidential campaign to take this action, which may have been embarrassing to presidential candidate John McCain.
158. 137 See generally Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001) (arguing that not only did presidential oversight of agencies increase through the Reagan and G. H. W. Bush presidencies, but contrary to popular belief, it did so under Clinton as well).
159. 138 I should note that I do not believe Congress actually is blind to much of what goes on in the administrative world. There is a great deal of congressional supervision of administrative agencies. See generally Beermann, Congressional Administration, supra note 1 (discussing both formal and informal methods of congressional oversight of administrative agencies). The supervision could be improved, however, if it was more centralized, systematic, and supported by a dedicated professional staff.
160. 139 Congressional Review Act of 1996, Pub. L. No. 104-121, §§ 251-253, 110 Stat. 868, 868-74 (codified as amended at 5 U. S. C. §§ 801-808 (2006)) (enacting procedures for congressional review of agency rulemaking as part of the so-called Contract with America).
161. 140 5 U. S. C. § 801 (2006).
162. 141 See id. § 801 (a) (3) (B).
163. 142 Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001).
164. 143 See Statement by the President on Signing Legislation to Repeal Federal Ergonomics Regulations, 1 PUB. PAPERS 269 (Mar. 20, 2001), available at 2001 WL 273110.
165. 144 See, e.g., 5 ILL. COMP. STAT. ANN. 100/5-90 to -140 (West 2006) (establishing and describing the Illinois Joint Committee on Administrative Rules). The Committee's website describes the Committee as follows:
166. The Joint Committee on Administrative Rules is a bipartisan legislative oversight committee created by the General Assembly in 1977. Pursuant to the Illinois Administrative Procedure Act, the committee is authorized to conduct systematic reviews of administrative rules promulgated by state agencies. The committee conducts several integrated review programs, including a review program for proposed, emergency and peremptory rulemaking, a review of new public acts and a complaint review program.
167. The committee is composed of 12 legislators who are appointed by the legislative leadership, and the membership is apportioned equally between the two houses and the two political parties. Members serve two-year terms, and the committee is co-chaired by a member of each party and legislative house. Support services for the committee are provided by 25 staff members.
168. Two purposes of the committee are to ensure that the Legislature is adequately informed of how laws are implemented through agency rulemaking and to facilitate public understanding of rules and regulations. To that end, in addition to the review of new and existing rulemaking, the committee monitors legislation that affects rulemaking and conducts a public act review to alert agencies to the need for rulemaking. The committee also distributes a weekly report, the Flinn Report, to inform and educate Illinois citizens about current rulemaking activity, and maintains the state's database for the Illinois Administrative Code and Illinois Register. JCAR Home Page, http://www.ilga.gov/commission/jcar/(quoting GEORGE H. RYAN, ILLINOIS BLUE BOOK 134 (1998)).
169. 145 See INS v. Chadha, 462 U. S. 919, 945-59 (1983) (holding a one-house legislative veto unconstitutional for violating the Constitution's bicameralism and presentment requirements for legislation).
170. 146 See RONALD A. CASS, COLIN S. DIVER and JACK M. BEERMANN, ADMINISTRATIVE LAW: CASES and MATERIALS 455 (5th ed. 2006).
171. 147 See, e.g., 1 U. S. C. §§ 1-8 (2006);
172. 5 ILL. COMP. STAT. ANN. 70/1 to/8 (West 2006).
173. 148 See Geier v. Am. Honda Motor Co., 529 U. S. 861, 864-65 (2000) (finding preemption in a 5-4 opinion written by Justice Breyer);
174. Medtronic Inc. v. Lohr, 518 U. S. 470, 508 (1996) (Breyer, J., concurring) (providing the fifth vote against preemption).