The rest is silence: Chevron deference, agency jurisdiction, and statutory silences

University of Illinois Law Review

Volumn 2009, Issue 5, 2009, Pages 1497-1565

  Sales, Nathan Alexander ^a   Adler, Jonathan H ^b  

^a GEORGE MASON UNIVERSITY   (United States)

^b CASE WESTERN RESERVE UNIVERSITY   (United States)

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EID: 70749118378     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (498)

1. The FTC adopted regulations defining a "financial institution" as "an institution the business of which is engaging in financial activities." 16 C. F. R. § 313.3 (k) (l) (2008).
2. Pub. L. No. 106-102, 113 Stat. 1338 (1999).
3. Am. Bar Ass'n v. FTC, 430 F.3d 457, 466-67 (D. C. Or. 2005) (quoting correspondence from FTC Director of the Bureau of Consumer Protection). The Act defined a "financial institution" as "any institution the business of which is engaging in financial activities", and further defined as "financial in nature" a wide range of activities, including "real estate settlement services", and "tax planning and preparation services", in addition to many activities more commonly considered financial.
4. Id. at 467.
5. See 12 C. F. R. § 225.28 (b) (2) (viii), (b) (6) (vi) (2008).
6. Am. Bar Ass'n, 430 F.3d at 468 ("The Commission apparently assumed-without reasoning-that it could extend its regulatory authority over attorneys engaged in the practice of law with no other basis than the observation that the Act does not provide for an exemption. ") ;
7. id. ("[T]he Commission repeatedly repairs to the position that no language in the statute exempts attorneys from regulation. ").
8. Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843 (1984) ("[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.").
9. Am. Bar Ass'n, 430 F.3d at 471.
10. Id. at 468 (quoting Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 671 (D. C. Cir. 1994)).
11. Id. at 471 ("[I]f there is the sort of ambiguity that supports an implicit congressional delegation of authority to the agency make a deference-worthy interpretation of the statute, we must look elsewhere than the failure to negate regulation of attorneys.") ;
12. id. at 469 ("Mere ambiguity in a statute is not evidence of congressional delegation of authority."
13. (quoting Michigan v. EPA, 268 F.3d 1075, 1082 (D. C. Cir. 2001).
14. Id. at 469
15. (quoting Sea-Land Serv., Inc. v. Dep't of Transp., 137 F.3d 640, 645 (D. C. Cir. 1998)).
16. Chevron, 467 U. S. at 843 ("[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." (emphasis added)).
17. See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L. J. 833, 836-37 (2001).
18. See id. at 836 (defining the "step zero" inquiry as "the inquiry that must be made in deciding whether courts should turn to the Chevron framework at all") ;
19. see also Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 207-11 (2006) [hereinafter Sunstein, Step Zero].
20. Merrill & Hickman, supra note 12, at 833.
21. See, e.g., Bus. Roundtable v. SEC, 905 F.2d 406, 408 (D. C. Cir. 1990) ("The Supreme Court cannot be said to have resolved the issue definitively.") ;
22. Daniel J. Gifford, The Emerging Outlines of a Revised Chevron Doctrine: Congressional Intent, Judicial Judgment, and Administrative Autonomy, 59 Admin. L. Rev. 783, 812 n. 151 (2007) ("The question of whether Chevron deference applies to the resolution of 'jurisdictional' issues has proved troublesome to courts.") ;
23. Merrill & Hickman, supra note 12, at 844 ("The Court has never resolved whether there should be a 'scope of jurisdiction' exception to Chevron deference").
24. But see, e.g., Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring in the judgment) ;
25. Richard Pierce Jr., Administrative Law Treatise § 3.5, at 157-58 (4th ed. 2002) (suggesting the "pattern" of the Court's decisions suggests "Chevron applies to cases in which an agency adopts a construction of a jurisdictional provision of a statute it administers").
26. Compare, e.g., Sunstein, Step Zero, supra note 13, at 234-36 (courts should apply Chevron to jurisdictional questions)
27. and Quincy M. Crawford, Comment, Chevron Deference to Agency Interpretations that Delimit the Scope of the Agency's Jurisdiction, 61 U. CHI. L. Rev. 957, 958 (1994) (same)
28. with Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 992-93 (1999) (Chevron is inapplicable to certain types of jurisdictional questions)
29. and Merrill & Hickman, supra note 12, at 837 (same)
30. and Lars Noah, Interpreting Agency Enabling Acts: Misplaced Metaphors in Administrative Law, 41 WM. & MARY L. REV. 1463, 1466-67 (2000) (same)
31. and Torrey A. Cope, Note, Judicial Deference to Agency Interpretations of Jurisdiction After Mead, 78 S. CAL. L. Rev. 1327 (2005) (same).
32. But cf. Crawford, supra note 16, at 970 (recognizing that there are "two types of jurisdictional interpretations: those in which the agency is interpreting language directly entrusted to the agency and those assertions of authority that are not grounded in the statutory text").
33. See Gellhom & Verkuil, supra note 16, at 992 ("[Ejxcept in highly unusual circumstances, agencies read their authority expansively and often pursue agendas far beyond that envisioned when the agencies were created.").
34. Dole v. United Steelworkers of Am., 494 U. S. 26, 34-36 (1990).
35. Air Courier Conference of Am., Int'l Comm. v. U. S. Postal Serv., 959 F.2d 1213, 1223 (3d Cir. 1992).
36. See generally Timothy K. Armstrong, Chevron Deference and Agency Self-interest, 13 CORNELL J. L. & PUB. POL'Y 203 (2004) ;
37. see also Infra Part IV. B.2.b.
38. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U. S. 967, 974 (2005).
39. N. Y. Shipping Ass'n v. Fed. Mar. Comm'n, 854 F.2d 1338, 1348 (D. C. Cir. 1988).
40. Hill v. Norton, 275 F.3d 98, 99 (D. C. Cir. 2001).
41. See Massachusetts v. EPA, 549 U. S. 497, 511-12 (2007).
42. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44, 354, 44-355 (proposed July 30, 2008).
43. Richard Gid Powers, Broken: The Troubled Past and Uncertain Future of the FBI 262 (2004).
44. Id.
45. Permits for Activities in Navigable Waters or Ocean Waters, 39 Fed. Reg. 12, 118, 12, 119 (Apr. 3, 1974).
46. See Natural Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D. D. C. 1975).
47. Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2100 (1990) [hereinafter Sunstein, Law and Administration].
48. Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 844-45 (1986).
49. In re Sealed Case, 237 F.3d 657, 662-63 (D. C. Cir. 2001).
50. O'Connell v. Shalala, 79 F.3d 170, 174-75 (1st Cir. 1996).
51. Nat'l Wildlife Fed'n v. Interstate Commerce Comm'n, 850 F.2d 694, 696 (D. C. Cir. 1988).
52. Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1283 (D. C. Cir. 1994).
53. P. R. Mar. Shipping Auth. v. Valley Freight Sys., Inc., 856 F.2d 546, 551 (3d Cir. 1988).
54. See, e.g., Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring in the judgment) ;
55. Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 676-77 (D. C. Cir. 1994) (en banc) (Williams, J., dissenting) ;
56. Crawford, supra note 16, at 968-69.
57. See infra Part V. A.
58. See supra text accompanying notes 1-10.
59. See Ry. Labor Executives' Ass'n, 29 F.3d at 662.
60. Am. Bus Ass'n v. Slater, 231 F.3d 1, 1 (D. C. Cir. 2000).
61. Bus. Roundtable v. SEC, 905 F.2d 406, 408 (D. C. Cir. 1990) ;
62. see also O'Connell v. Shalala, 79 F.3d 170, 176 n. 6 (1st Cir. 1996) ;
63. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 911 F.2d 993, 1002 (5th Cir. 1990) ;
64. Merrill & Hickman, supra note 12, at 835.
65. Compare Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 844 (1986) (stating that "considerable weight must be accorded the CFTC's position" that "it has the power to take jurisdiction over [state-law] counterclaims" (citing Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 844-45 (1984))), with Adams Fruit Co. v. Barrett, 494 U. S. 638, 650 (1990) (recognizing that "agency determinations within the scope of delegated authority are entitled to deference", but reiterating the "fundamental" principle "'that an agency may not bootstrap itself into an area in which it has no jurisdiction'"
66. (quoting Fed. Mar. Comm'n v. Seatrain Lines, Inc., 411 U. S. 726, 745 (1973))).
67. 487 U. S. 354 (1988).
68. Id. at 369-70.
69. Id. at 381 (Scalia, J., concurring in the judgment).
70. Id.
71. Id. at 381-82.
72. See id. at 381 (identifying Congress's expectation as "the general rationale for deference") ;
73. see also, e.g., United States v. Mead Corp., 533 U. S. 218, 226-27 (2001) (holding that an agency interpretation "qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law") ;
74. Pension Benefit Guar. Corp. v. LTV Corp., 496 U. S. 633, 651-52 (1990) ("[Practical agency expertise is one of the principal justifications behind Chevron deference.").
75. See, e.g., Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1284 (D. C. Cir. 1994) (stressing "the difficulties of drawing a manageable and principled line between jurisdictional and other issues") ;
76. Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 676-77 (D. C. Cir. 1994) (en banc) (Williams, J., dissenting) ("Indeed, any issue may readily be characterized as jurisdictional merely by manipulating the level of generality at which it is framed.") ;
77. Sunstein, Law and Administration, supra note 31, at 42097 n. 124, 2099 nn. 132-33;
78. Crawford, supra note 16, at 968-69.
79. Miss. Power & Light, 487 U. S. at 381 (Scalia, J., concurring).
80. Id. ("Virtually any administrative action can be characterized as either the one or the other, depending upon how generally one wishes to describe the 'authority.'").
81. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1186-87 (1989).
82. 491 U. S. 110 (1989).
83. Id. at 111, 127 n. 6.
84. Id. at 127 n. 6.
85. Id.
86. Whatever its basis, Justice Scalia's concern with judicially manageable line-drawing, particularly in the Chevron context, is an oft-repeated one. Notably, it informed his lone dissent in United States v. Mead, in which the Court declined to afford Chevron deference to Customs Service tariff designations that were made in a fairly informal manner. 533 U. S. 218, 258 n. 6 (2001) (Scalia, J., dissenting) ("The authoritativeness of the agency ruling may not be a bright-line standard-but it is infinitely brighter than the line the Court asks us to draw today") ;
87. see also id. at 236 (majority opinion) ("Justice Scalia's first priority over the years has been to limit and simplify.").
88. Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 386 (1988) (Brennan, J., dissenting).
89. Id. at 387.
90. Id. Neither opinion musters any evidence for, and does no more than baldly assert, its claim about agency expertise.
91. Id. at 386-87.
92. See Ala. Rivers Alliance v. FERC, 325 F.3d 290, 297 n. 9 (D. C. Cir. 2003) (indicating that the court will not defer to FERC's interpretation of CWA because "it is EPA-and not FERC-that administers the CWA").
93. Id. at 387.
94. See United States v. Mead, 533 U. S. 218, 226-27 (2001) (concluding that Chevron deference applies "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority") ;
95. see also infra notes 186-89 and accompanying text.
96. 478 U. S. 833 (1986).
97. Miss. Power & Light, 487 U. S. at 381 (Scalia, J., concurring in the judgment) ;
98. see also, e.g., Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1283 (D. C. Or. 1994) ;
99. Air Courier Conference of Am., Int'l Comm. v. U. S. Postal Serv., 959 F.2d 1213, 1223-24 & n. 8 (3d Or. 1992) ;
100. Crawford, supra note 16, at 961-62.
101. Schor, 478 U. S. at 835-36, 847. After resolving the statutory question, the Court then considered whether the CFTC's assertion of jurisdiction-or Congress's delegation of that poweroffended Article III of the Constitution.
102. Id. at 847-58. This latter question is beyond the scope of this Article.
103. Id. at 841.
104. Id. at 841-42.
105. Id. at 842.
106. Id. at 843.
107. Id. at 847.
108. Id. at 844.
109. Id. at 845.
110. This is a common strategy, not just at the Supreme Court, but among the lower courts as well: Courts regularly conclude that an agency's jurisdictional interpretation is or is not eligible for Chevron deference after finding that the relevant statute unambiguously settles the issue. In effect, courts discuss the possibility of deferring to an agency's views only after deciding, de novo, whether those views are meritorious. For instance, in evaluating the Postal Service's assertion of authority to set international mail rates, a court concluded that Congress unambiguously delegated that power, and went on to state that its holding was "buttressed" and "strengthened" by the deference to which the agency was entitled. Air Courier Conference of Am., Int'l Comm. v. U. S. Postal Serv., 959 F.2d 1213, 1215, 1217-23 (3d Cir. 1992). Another court held that an act of Congress "strongly, if not conclusively" evinced the legislature's design to grant the Interior Department authority to take certain lands into trust for Indian tribes, and went on to extend the agency's interpretation Chevron deference-"[ijnsofar as agency deference remains appropriate in this case."
111. Connecticut ex rel. Blumenthal v. U. S. Dep't of the Interior, 228 F.3d 82, 89, 93 (2d Cir. 2000). The same pattern holds true for courts declining to defer to an agency's assertion of jurisdiction.
112. See, e.g., United Transp. Union v. Surface Transp. Bd., 183 F.3d 606, 612 (7th Cir. 1999) (concluding that the Board unambiguously had jurisdiction over a set of railroad track, but stating that "an agency's determination about the scope of its own jurisdiction indeed does receive de novo review and not Chevron deference") ;
113. United Transp. Union, 169 F.3d at 477 (taking the same approach). This approach is consistent both with Chevron
114. see Crawford, supra note 16, at 965, and with the proposition that Chevron is inapplicable to jurisdictional questions. When courts conclude that a given statute unambiguously grants or denies an agency a proposed power, they are deciding, consistent with Chevron step one, that Congress's intent is clear. But they are also engaging in the sort of de novo analysis they would be obliged to undertake if Chevron deference were unavailable. Hence, the fact that a court strikes an agency's assertion of jurisdiction on the grounds that Congress unambiguously foreclosed it should not be seen as a tacit holding that Chevron applies to jurisdictional questions.
115. 494 U. S. 26, 42-43 (1990).
116. See id. at 28-29 (citing 29 C. F. R. § 1910.1200 (1984)).
117. Id. at 34.
118. Id. at 42-43 (citing Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842-43 (1984)) ;
119. see also Dole, 494 U. S. at 35 (explaining that "the language, structure, and purpose of the Paperwork Reduction Act reveal that... Congress did not intend the Act to encompass these or any other third-party disclosure rules").
120. Dole, 494 U. S. at 53 (White, J., dissenting).
121. Id. at 54. Justice Scalia joined the Dole majority, presumably on the Chevron step one ground that the statute unambiguously foreclosed OMB jurisdiction.
122. See id. at 27, 42-43 (Scalia, J.).
123. Id. at 34-35.
124. 529 U. S. 120, 125 (2000).
125. 21 U. S. C. § 321 (g) (1) (C) (2006).
126. Brown & Williamson, 529 U. S. at 125.
127. See id. at 159-60.
128. Id. at 137.
129. Id. at 136.
130. Id. at 144.
131. Id. at 161-67 (Breyer, J., dissenting).
132. Id. at 174-87.
133. Id. at 174-81.
134. Id. at 181-86.
135. *16-20;
136. *13-17.
137. Brown & Williamson, 529 U. S. at 132 (remarking that the Court's analysis is governed by Chevron since the case "involves an administrative agency's construction of a statute that it administers").
138. Id. at 159.
139. Id. ("[T]here may be reason to hesitate before concluding that Congress has intended such an implicit delegation. ").
140. 545 U. S. 967 (2005).
141. 549 U. S. 497 (2007).
142. 47 U. S. C. § 153 (46) (2006).
143. Id. §§ 201, 251 (a) (1), 254 (d).
144. In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 F. C. C. R. 4798, 4823-24 (2002).
145. Brand X, 545 U. S. at 986-1000.
146. Id. at 980-86. Citing United States v. Mead Corp., 533 U. S. 218 (2001), and Christensen v. Harris County, 529 U. S. 576 (2000), the Court concluded that deference was in order. Brand X, 545 U. S. at 980-81.
147. Brand X, 545 U. S. at 980.
148. Id. at 1006-15 (Scalia, J., dissenting). 109.
149. See State Farm Mut. Auto. Ins. Co. v. Dep't of Transp., 680 F.2d 206, 242 (D. C. Cir. 1982), vacated sub nom.
150. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29 (1983).
151. Active Judges and Passive Restraints, REGULATION, July-Aug. 1982, at 10, 13.
152. Brand X, 545 U. S. at 1013 (Scalia, J., dissenting) ;
153. see also id. at 1005 ("[I]t might be more accurate to say the Commission has attempted to establish a whole new regime of nonregulation ").
154. 549 U. S. 497 (2007).
155. See Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52, 922, 52, 925 (Sept. 8, 2003).
156. See id. at 52, 925-29. It should be noted that one of the authors participated in an amicus curiae brief taking this position as well.
157. See Brief for The Cato Institute and Law Professors Jonathan H. Adler, James L. Huffman, and Andrew P. Morriss as Amici Curiae in Supporting Respondents, Massachusetts v. EPA, 549 U. S. 497 (2007) (No. 05-1120), 2006 WL 3043962, at §20.
158. 42 U. S. C. § 7602 (g) (2006).
159. Massachusetts, 549 U. S. at 529.
160. Id.
161. Id. at 527.
162. See Connecticut v. U. S. Dep't of the Interior, 228 F.3d 82, 93 (2d Cir. 2000) ;
163. Air Courier Conference of Am., Int'I Comm. v. U. S. Postal Serv., 959 F.2d 1213, 12 23-25 (3d Cir. 1992) ;
164. Transpacific Westbound Rate Agreement v. Fed. Mar. Comm'n, 951 F.2d 950, 952 (9th Cir. 1991) ;
165. Bd. of Governors of the Univ. of N. C. v. U. S. Dep't of Labor, 917 F.2d 812, 816 (4th Cir. 1990).
166. See Tafas v. Doll, 559 F.3d 1345, 1353 (Fed. Cir. 2009), reh 'g granted, 2009 WL1916498 (Fed. Cir. July 6, 2009) ;
167. N. III. Steel Supply Co. v. Sec'y of Labor, 294 F.3d 844, 846-47 (7th Cir. 2002) ;
168. United Transp. Union v. Surface Transp. Bd., 169 F.3d 474, 477 (7th Cir. 1999).
169. Compare N. Y. Shipping Ass'n v. Fed. Mar. Comm'n, 854 F.2d 1338, 1362-63 (D. C. Cir. 1988), and
170. ACLU v. FCC, 823 F.2d 1554, 1567 n. 32 (D. C. Cir. 1987) (per curiam), with
171. Conn. Dep't of Pub. Util. Control v. Fed. Energy Regulatory Comm'n, No. 07-1375, 2009 WL 1754607 (D. C. Cir. June 23, 2009) ;
172. Nat'l Ass'n of Regulatory Util. Comm'rs v. Fed. Energy Regulatory Comm'n, 475 F.3d 1277, 1279 (D. C. Cir. 2007), and
173. Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1283-84 (D. C. Cir. 1994), and
174. Bus. Roundtable v. SEC, 905 F.2d 406, 408 (D. C. Cir. 1990) ;
175. Compare Lyon County Landfill v. EPA, 406 F.3d 981, 983-84 (8th Cir. 2005), with
176. Missouri v. Andrews, 787 F.2d 270, 286 (8th Cir. 1986).
177. See Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997) ;
178. O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir. 1996) ;
179. Cascade Nat. Gas Corp. v. Fed. Energy Regulatory Comm'n, 55 F.2d 1412, 1415 n. 3 (10th Cir. 1992) ;
180. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 911 F.2d 993, 1002 (5th Cir. 1990) ;
181. see also Teper v. Miller, 82 F.3d 989, 997-98 (11th Cir. 1996) ;
182. id. at 999 (Carnes, J., concurring) (declining to join the portion of the majority opinion that discusses "the deference that might be due the Commission's regulations and advisory opinions").
183. Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843 (1984) (concluding that deference is due "if the statute is silent or ambiguous with respect to the specific issue").
184. 1 PIERCE, supra note 15, at 143.
185. See supra text accompanying notes 1-10.
186. 29 F.3d 655 (D. C. Cir. 1994) ;
187. see also In re Sealed Case, 237 F.3d 657, 667 (D. C. Cir. 2001) (holding that, because the Federal Election Campaign Act nowhere authorized the Federal Election Commission to "make public an ongoing investigation", the statute's "clear meaning" denied it that power) ;
188. Lancashire Coal Co. v. Sec'y of Labor, 968 F.2d 388, 390-91 (3d Cir. 1992) (finding "considerable support" for the proposition that the Mine Safety and Health Act's failure to grant the agency authority over structures "resulting from" the mining of coal was a denial of power).
189. 45 U. S. C. § 152 (2006).
190. 12a Ry. Labor Executives' Ass'n, 29 F.3d at 659 ("[T]he Board would have us presume a delegation of power from Congress absent an express withholding of such power.") ;
191. id. at 661.
192. Id. at 659.
193. Id. at 670.
194. Id. at 664 n. 5;
195. see also id. at 671.
196. Id. at 664-69.
197. Id. at 671 (citations omitted).
198. See id.
199. Id. at 676-77 (Williams, J. dissenting).
200. See Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring) ("[T]here is no discernible line between an agency's exceeding its authority and an agency's exceeding authorized application of its authority.").
201. Ry. Labor Executives' Ass'n, 29 F.3d at 676 (Williams, J, dissenting).
202. Id.
203. Id.
204. 231 F.3d 1 (D. C. Cir. 2000).
205. Id. at 2.
206. 42 U. S. C. § 12188 (a) (l) (2006).
207. See Newman v. Piggie Park Enters., Inc., 390 U. S. 400, 402 (1968).
208. See Am. Bus Ass'n v. Slater, 17 NDLR ¶ 166 (D. D. C. Sept. 10, 1999), available at 1999 WL 986849, at *22 ("The plain language indicates that Congress did not explicitly forbid the Secretary from including a compensation mechanism in the [bus] accessibility regulations.").
209. Am. Bus, 231 F.3d at 4 ("By preceding the words 'remedies and procedures' with the definite article 'the,' as opposed to the more general 'a' or 'an,' Congress made clear that it understood [the enumerated] remedies to be exclusive.").
210. Id. at 8 (Sentelle, J., concurring).
211. Id. ("Congress's failure to grant an agency a given power is not an ambiguity as to whether that power has, in fact, been granted. On the contrary, and as this Court persistently has recognized, a statutory silence on the granting of a power is a denial of that power to the agency.").
212. 14a Id. at 9;
213. see also NRA v. Reno, 216 F.3d 122, 141 (D. C. Cir. 2000) (Sentelle, J., dissenting) ("The statute is not ambiguous on whether it grants the Attorney General the power to retain the records which the statute empowers her to destroy. The statute simply does not grant her that power.").
214. Am. Bus, 231 F.3d at 9 (Sentelle, J., concurring).
215. Id.
216. Id.
217. Id.
218. 467 U. S. 837 (1984).
219. As Eskridge and Baer note, the Supreme Court had been "highly deferential to agency interpretations before Chevron." William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 596 Geo. L. J. 1083, 1120 (2008).
220. See Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 399, 402 (Peter L. Strauss ed., 2006) ;
221. Robert V. Percival, Environmental Law in the Supreme Court: Highlights from the Blackmun Papers, 35 ENVTL. L. REP. 10637, 10644 (2005).
222. See Eskridge & Baer, supra note 154, at 1087 ("Almost immediately, Reagan Administration officials and appointees proclaimed a 'Chevron Revolution. "') ;
223. Kenneth W. Starr, Judicial Review in the Port-Chevron Era, 3 Yale J. on Reg. 283, 284 (1986). As Eskridge and Baer note, even Chevron's early critics recognized its potential impact.
224. See Eskridge & Baer, supra note 154, at 1089.
225. Sunstein, Step Zero, supra note 13, at 188.
226. Eskridge & Baer, supra note 154, at 1088.
227. Merrill & Hickman, supra note 12, at 835-37.
228. Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842 (1984).
229. Id. at 842-43.
230. Id. at 843.
231. Id. at 844.
232. 480 U. S. 421, 448 (1987).
233. See Chevron, 467 U. S. at 843-44 ("If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation-Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. 71In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." (citations omitted)).
234. Merrill & Hickman, supra note 12, at 834.
235. See, e.g., Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. Pa. L. REV. 549, 589-90 (1985).
236. See Chevron, 467 U. S. at 865 ("Judges are not experts in the field, and are not part of either political branch of Government.").
237. For example, the Occupational Safety and Health (OSH) Act, which led to the creation of the Occupational Safety and Health Administration, was largely based on a proposal developed within the Department of Labor.
238. See Ronald A. Cass et al., Administrative Law: Cases and Materials 10-15 (5th ed. 2006) (summarizing the history of the OSH Act). Indeed, the "initial impetus" for the legislation "came, not from organized labor, but from officials in the Labor Department dissatisfied with the limited scope of their authority to regulate workplace safety."
239. Id. at 11.
240. Of course, there is a strong argument that most such decisions should actually be made by the peoples' elected representatives in Congress.
241. See generally David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993).
242. See, e.g., Richard J. Pierce, Jr., Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 Vand. L. Rev. 301, 303 (1988) ;
243. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L. J. 511, 515 (such policy determinations are "not for the courts but for the political branches") ;
244. Starr, supra note 156, at 309.
245. Chevron, 467 U. S. at 864;
246. see also EEOC v. Arabian Am. Oil Co., 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in the judgment) ("[D]eference is not abdication").
247. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 259 n. 175.
248. See Peter L. Strauss, One-Hundred-Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. Rev. 1093, 1121-22 (1987). Insofar as the Supreme Court's docket has decreased by almost 50 percent since the time of Strauss' article, the uniformity-reinforcing aspects of Chevron deference could be more important.
249. See Merrill & Hickman, supra note 12, at 861 n. 156.
250. For representative critiques of Chevron
251. see Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV 452, 456 (1989) ;
252. Michael Herz, Deference Running Riot: Separating Interpretation and Lav/making Under Chevron, 6 ADMIN. L. J. AM. U. 187, 189-90 (1992).
253. See, e.g., Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. L. J. 269, 26-70 (1988) ;
254. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 Geo. L. J. 2225, 2232-34 (1997) ;
255. Starr, supra note 156, at 283.
256. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. REV. 593, 618-19 (1992) ;
257. David M. Hasen, The Ambiguous Basis of Judicial Deference to Administrative Rules, 17 YALE J. ON REG. 327, 345-54 (2000) ;
258. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 315-17 (2000) [hereinafter Sunstein, Nondelegation Canons].
259. Sunstein, Step Zero, supra note 13, at 195 ("[T]he [Chevron] Court "announced its two-step approach without giving a clear sense of the theory that justified it.") ;
260. id. at 197 ("The Chevron Court's approach was much clearer than the rationale that accounted for it.").
261. 494 U. S. 638, 649 (1990) ;
262. see also Dunn v. Commodity Futures Trading Comm'n, 519 U. S. 465, 479 n. 14 (1997) (explaining that Chevron deference "arises out of background presumptions of congressional intent" (citing Smiley v. Citibank (S. D.), 517 U. S. 735, 740-41 (1996))) ;
263. Merrill & Hickman, supra note 12, at 863 (observing that "[t]he Court... has rather consistently opted for the congressional intent theory" as the legal foundation for Chevron deference).
264. Merrill & Hickman, supra note 12, at 836 ("Chevron rests on implied congressional intent.") ;
265. id. at 869 ("Chevron itself and most post-Chevron decisions describe the doctrine as flowing from the implicit instructions of Congress.") ;
266. see also Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. on REG 1, 4 (1990) ("The threshold issue for the court is always one of congressional intent: did Congress intend the agency's interpretation to bind the courts?").
267. 529 U. S. 576 (2000).
268. Id. at 587-88.
269. Id. at 587 (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)).
270. Christenson, 529 U. S. at 587.
271. See Merrill & Hickman, supra note 12, at 837. The Court suggested that delegation should be presumed in Haggar Apparel Co. v. United Stales, 526 U. S. 380, 389-90 (1999).
272. 533 U. S. 218 (2001). As Eskridge & Baer observe, "Mead appears to have partially settled the debate within the Court about the conditions for triggering Chevron deference" Eskridge & Baer, supra note 154, at 1123. Their empirical analysis also concludes that the Court's actual practice supports the Mead and Oregon understanding of Chevron.
273. Id. (noting, however, that "the Court's practice has been inconsistent").
274. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L. REV. 807, 812 (2002) ("At the most general level, Mead eliminates any doubt that Chevron deference is grounded in congressional intent.").
275. Mead, 533 U. S. at 226-27.
276. Id. at 227.
277. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ;
278. Scalia, supra note 171, at 517;
279. Sunstein, Step Zero, supra note 13, at 192;
280. see also David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Cr. Rev. 201, 212-25 (2002).
281. Merrill & Hickman, supra note 12, at 863 (observing that the Chevron doctrine has "roughly the same status in law as a federal statute").
282. Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 ADMIN. L. J. AM. U. 1, 23-24 (1996).
283. Merrill & Hickman, supra note 12, at 872.
284. Id.
285. see also id. at 859 (" (E) xpanding the Chevron doctrine to cover most or all of the universe of situations in which deference is possible would constitute an over-application of the notion of mandatory deference, and as a byproduct of over-application, would likely lead to dilution of the practice of deferring to agency interpretations of law.").
286. Id. at 883.
287. Id. at 836;
288. see also Sunstein, Step Zero, supra note 13, at 191.
289. Sunstein, Step Zero, supra note 13, at 208.
290. See Merrill & Hickman, supra note 12, at 837.
291. Herz, supra note 175, at 230.
292. Id. at 230-31.
293. See United States v. Mead Corp., 533 U. S. 218, 251 (2001) ("[A]s significant as notice-andcomment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.").
294. Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. Wash. L. REV. 347, 348 (2003).
295. Merrill & Hickman, supra note 12, at 910-11.
296. See Vermeule, supra note 202, at 356-58 (criticizing Mead for imposing an unnecessarily complex legal regime on lower courts).
297. At the risk of stating the obvious, we should emphasize that this Article only discusses the scope of agency powers relating to domestic lawmaking. The questions of whether administrative agencies (or the president) have inherent powers in matters of foreign relations and national security, and whether Congress may limit any such powers, are well beyond the scope of this Article. When we write things like "Congress is the source of all agency power", the reader should mentally supply the phrase "in matters of domestic lawmaking."
298. Cf. Dames & Moore v. Regan, 453 U. S. 654, 677-78 (1981) (noting that Congress cannot "legislate with regard to every possible action the President" may need to take).
299. See Vermeule, supra note 202, at 348 (noting Mead established that the default rule runs against delegation).
300. It would, however, make it more difficult for Congress to escape accountability for delegations of jurisdiction by enacting vague statutes and then blaming "out of control" agencies for asserting excessive jurisdiction.
301. See Eskridge & Frickey, supra note 177, at 618-19.
302. See, e.g., N. Y. Shipping Ass'n v. Fed. Mar. Comm'n, 854 F.2d 1338, 1363 n. 9 (D. C. Or. 1988).
303. Id.
304. see also Air Courier Conference of Am., Int'l Comm. v. U. S. Postal Serv., 959 F.2d 1213, 1225 (3d Cir. 1992) (noting the proposition "that deference is inappropriate" when an agency seeks to advance "its own bureaucratic self-interest runs counter to Chevron") ;
305. cf. Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 663 (D. C. Cir. 1994) (en banc) (remarking, in a related context, that "we find it difficult to support the distinction drawn in our prior cases between Board decisions asserting statutory jurisdiction and those declining to exercise it").
306. Nat'l Wildlife Fed'n v. Interstate Commerce Comm'n, 850 F.2d 694, 699 n. 6 (D. C. Cir. 1988)
307. (quoting Schwabacher v. United States, 334 U. S. 182, 204 (1948) (Frankfurter, J., dissenting)) ;
308. see also Kokechik Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795, 807-08 (D. C. Cir. 1988) (Starr, J., dissenting).
309. Connecticut v. U. S. Dep't of the Interior, 228 F.3d 82, 93 (2d Cir. 2000) (quoting Indep. Ins. Agents of Am., Inc. v. Bd. of Governors of Fed. Reserve Sys., 838 F.2d 627, 632 (2d Cir. 1988)) ;
310. cf. Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162 (4th Cir. 1998) ("We also note that ascertaining congressional intent is of particular importance where, as here, an agency is attempting to expand the scope of its jurisdiction. ").
311. See supra note 26 and accompanying text.
312. See infra notes 289-92 and accompanying text.
313. "Premise facts" are "facts that explicitly or implicitly serve as premises used to decide issues of law." Robert E. Keeton, Legislative Facts and Similar Things: Deciding Disputed Premise Facts, 73 Minn. L. Rev. 1, 8 (1988).
314. See generally Todd S. Aargaard, Factual Premises of Statutory Interpretation in Agency Review Cases, 77 Geo. Wash. L. Rev. 366 (2009).
315. 5 U. S. C. § 706 (2006).
316. See Aargaard, supra note 216, at 22 n. 99.
317. Id.
318. It is important to emphasize that this is not a proposal to create an anti-regulatory bias in administrative law, nor do we express a preference for private ordering over government regulation. The proposal merely embodies a recognition that agencies lack authority absent a legislative delegation and that such a recognition necessarily entails a "default" of no jurisdiction. Though courts should be wary in discovering previously undiscovered agency jurisdiction, nothing in our proposal would prevent courts from finding that Congress implicitly delegated regulatory jurisdiction to a given agency.
319. See Am. Bus Ass'n v. Slater, 231 F.3d 1, 8 (2000).
320. Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843 (1984) ("Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.").
321. Herz, supra note 175, at 203.
322. See supra notes 165-66 and accompanying text.
323. United States v. Mead Corp., 533 U. S. 218, 226-27 (2001).
324. See id. (stating that Chevron applies "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.") ;
325. id. at 229 (identifying notice and comment rulemaking as "a very good indicator of delegation meriting Chevron treatment").
326. See id. at 234-35.
327. Adams Fruit Co. v. Barrett, 494 U. S. 638, 649 (1990) ("A precondition to deference under Chevron is a congressional delegation of administrative authority.").
328. Bowen v. Georgetown Univ. Hosp., 488 U. S. 204, 208 (1988) ("It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress.") ;
329. La. Pub. Serv. Comm'n v. FCC, 476 U. S. 355, 374 (1986) ("[A]n agency literally has no power to act... unless and until Congress confers power upon it.").
330. Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 14 (1983).
331. See Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation, 96 Nw. U. L. REV. 1239, 1282 (2002) ("If administrators were given 'final authority on issues of statutory construction,' this shift in power would substantially undermine our constitutional commitment to representative government." (quoting Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843 n. 9 (1984))). Congress always retains the ability to revise statutes and redefine agency jurisdiction, so an agency can never be said to be the "final authority" on such questions. However, due to the institutional obstacles that inherently slow the legislative process, as a practical matter, agency interpretations that the courts leave undisturbed will often function as the "final" interpretation for some time.
332. See id. at 1287-88;
333. see also id. at 1278 ("The constitutional structure is squarely at odds with allowing administrators to police boundaries of their own authority.") ;
334. Noah, supra note 16, at 1492-93 ("Administrative agencies can no more amend their own organic statutes than the President or Congress could unilaterally amend the U. S. Constitution outside the strictures of Article V.").
335. Noah, supra note 16, at 1493-94 ("[Apparently all [administrative law paradigms] would condemn efforts by agencies to arrogate undelegated power.").
336. This is not to deny that the appointing president's ideology or political affiliation may have an effect on judicial behavior. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. Rev. 823, 824-25 (2006). Even if judges are "political" or "ideological" in this fashion, the overall political orientation of courts changes slowly over time with the gradual replacement of judicial personnel, resulting in fewer dramatic and unpredicted doctrinal shifts, particularly in the Courts of Appeals.
337. Molot, supra note 231, at 11.
338. see, e.g., adrian vermeule, judging under uncertainty: an institutional Theory of Legal Interpretation 215 (2006).
339. Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. CHI. L. REV. 329, 359 (2007).
340. 5 U. S. C. § 706 (2006).
341. See Noah, supra note 16, at 1524.
342. 5 U. S. C. § 558 (b) (emphasis added) ;
343. see also John Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 198-99 (1998).
344. 5 U. S. C. § 706 (2) (C).
345. See also Noah, supra note 16, at 1524 (noting Congress "considered amending the APA to reinforce the judicial function in reviewing statutory questions, particularly on jurisdictional issues").
346. United States v. Mead Corp., 533 U. S. 218, 257 (2001) (Scalia J., dissenting).
347. Merrill & Hickman, supra note 12, at 910.
348. See Anthony, supra note 192, at 24-27.
349. 5 U. S. C. § 559 ("Subsequent statute may not be held to supersede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301 (2) (E), 5372, or 7521 of this title, or the provisions of section 5335 (a) (B) of this title that relate to administrative law judges, except to the extent that it does so expressly.").
350. Such power to create regulatory jurisdiction where none existed is quintessentialy "legislative" power.
351. See Larry Alexander & Saikrishna Prakash, Delegation Really Running Riot 2-4 (San Diego Legal Studies Paper, No. 07-54, 2006), available at http://papers.ssrn. com/soB/papers. cfm?abstract-id=921743.
352. See Solid Waste Agency N. Cook County v. U. S. Army Corps of Eng'rs, 531 U. S. 159, 172 (2001) ("Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result.") ;
353. Edward J. DeBartolo Corp. v. Ha. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.") ;
354. Bowen v. Georgetown Univ. Hosp., 488 U. S. 204, 208-09 (1988).
355. See Sunstein, Nondelegation Canons, supra note 177, at 331-35.
356. Manning, supra note 173, at 223 ("The nondelegation doctrine... now operates exclusively through the interpretive canon requiring avoidance of serious constitutional questions.").
357. Rapanos v. United States, 547 U. S. 715, 738 (2006) ;
358. Solid Waste Agency, 531 U. S. at 173.
359. See Jonathan H. Adler, Once More, With Feeling: Reaffirming the Limits of Clean Water Act Jurisdiction, in THE SUPREME COURT AND THE CLEAN WATER ACT. FIVE ESSAYS 81 (L. Kinvin Wroth ed., Vermont Law School, 2007).
360. See Manning, supra note 173, at 223.
361. Herz, supra note 175, at 187.
362. Some of the arguments we make in this Section might be read as more ambitious pleas for Chevron to be discarded root and branch, and replaced with a regime of de novo judicial review for all agency statutory interpretations. We make no such argument. Our aim is to domesticate Chevron, not to bury it. Nor does our no-deference rule for jurisdictional questions necessarily entail the proposition that Chevron should be abolished even in nonjurisdictional cases. If one were designing a deference regime from the ground up, one would want to weigh (among many other considerations) the risk that a rule of judicial deference to agency statutory interpretations might make it prohibitively difficult for courts to resolve legal disputes (i.e., the risk of excessive decision costs), as well as the likelihood that courts might arrogate to themselves policymaking powers that properly lie with the political branches (i.e., the risk of judicial aggrandizement). Both risks seem likely to be greater where courts are called upon to review agencies' nonjurisdictional interpretations de novo and weaker where they review jurisdictional interpretations without deference. Partly, this is because jurisdictional cases probably occur less frequently than nonjurisdictional ones. More to the point, because courts have less expertise in figuring out how to administer an agency's regulatory program than they do in resolving questions of statutory interpretation and jurisdiction
363. see supra Part IV. A.3, it seems that decision costs would be substantially higher in nonjurisdictional cases. In addition, there are probably more opportunities for courts to smuggle their policy preferences into disputes about an agency's administration of a regulatory program than disputes about the scope of the agency's jurisdiction; it is likely that judicial aggrandizement would occur more frequently in nonjurisdictional cases. In short, nonjurisdictional cases present unique risks of excessive decision costs and judicial aggrandizement, which justify retaining the Chevron framework in that context even as we call for it to be abandoned for jurisdictional questions. (Of course, this argument depends on the ability to distinguish meaningfully between jurisdictional and nonjurisdictional cases, a topic to which we return in Part V. A infra.)
364. See William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & ECON. 875, 876 (1975) ;
365. George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 3 (1971) ;
366. see also Daniel A. Farber & Philip A. Frickey, law & Public Choice 12-37 (1991).
367. The one exception to this may be "logrolling", in which interest groups agree to support each others' priorities-such as spending requests-without needing to compromise any of their own.
368. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. REV. 1207, 1210 (2007).
369. Id. at 1216.
370. Frank H. Easterbrook, Statutes' Domains, 50 U. Cm. L. Rev. 533, 540 (1983) ("What matters to the compromisers is reducing the chance that their work will be invoked subsequently to achieve more, or less, than they intended, thereby upsetting the balance of the package.").
371. On the importance of rent extraction in describing political behavior
372. see generally FRED S. McChesney, Money for Nothing: Politicians, Rent Extraction, and Political Extortion (1997). According to McChesney, one form of rent extraction occurs when politicians promise not to take action that will harm interest groups.
373. Id. at 25. If administrative agencies are capable of expanding their own jurisdiction, it is more difficult for politicians to give the assurances necessary for rent extraction to be successful.
374. See Rodriguez & Weingast, supra note 257, at 1209 ("Expansionary reading of existing statutes by judges inhibits congressional passage of new progressive legislation. ").
375. Landes & Posner, supra note 255, at 879.
376. See id. at 888.
377. Id. at 877.
378. Easterbrook, supra note 259, at 541 ("No matter how good the end in view, achievement of the end will have some cost, and at some point the cost will begin to exceed the benefits.").
379. Id.
380. Id. at 540 ("Almost all statutes are compromises, and the cornerstone of many a compromise is the decision, usually unexpressed, to leave certain issues unresolved.").
381. Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 666 (1992).
382. Change in legislative majorities can also threaten prior interest-group deals, but only to a lesser extent due to the various "vetogates" that make it difficult to pass superseding legislation.
383. See Landes & Posner, supra note 255, at 878. On "vetogates, "
384. see William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretations, 66 U. CHI. L. REV. 671, 677 n. 13 (1999) (defining "vetogate" as "a place within a process where a statutory proposal can be vetoed or effectively killed").
385. See Landes & Posner, supra note 255, at 879 ("[T]he limits of human foresight, the ambiguities of language, and the high cost of legislative deliberation combine to assure that most legislation will be enacted in a seriously incomplete form, with many areas of uncertainty left to be resolved by the courts.").
386. Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 865 (1984).
387. See Jim Abrams, House Restores Partial Vote to Nonstate Delegates, Orlando SENTINEL, Jan. 25, 2007, at A3.
388. In the 2000 census, the least populous state, Wyoming, had a population of 493, 782. California, the nation's most populous state, boasted a population of 33, 871, 648. U. S. Census Bureau, Population, Housing Units, area, and Density: 2000, available at http//factfinder. census.gov/servlet/GCTTable?-bm= n&Jang=en&mt-pame=DEC-2000-SFl-U-GCTPHlR-US9S& format=US-9S&box- head-nbr=GCT-PHl-R&ds-name=DEC-2000-SFl-U&geo-id=01000US.
389. Further, insofar as administrative agencies are subject to capture, they are likely to be more responsive to concentrated interests, economic and otherwise, and even less responsive to broader public concerns.
390. See, e.g.. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
391. See Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. Rev. 800, 811 (1983) ("The basic reason why statutes are so frequently ambiguous in application is not that they are poorly drafted-though many are-and not that the legislators failed to agree on just what they wanted to accomplish in the statute-though often they do fail-but that a statute necessarily is drafted in advance of, and with imperfect appreciation for the problems that will be encountered in, its application. ").
392. See Amanda Frost, Certifying Questions to Congress, 101 Nw. U. L. Rev. 1, 9-10 (2007) ("Congress may choose to enact an ambiguous statute as a compromise to ensure the statute's passage;
393. by being purposely vague, legislative drafters can generate sufficient support for a statute that would fail to become law were sensitive issues definitively resolved through clear and detailed statutory language.").
394. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2155 (2002) (emphasizing that "ambiguity allows Congress to evade accountability", and to "shift the dirty work of legislation to the courts").
395. See McCHESNEY, supra note 260, at 37.
396. See 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).
397. See Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 835-36 (1986).
398. Cf. 7 U. S. C. § 18 (a) (1) (A) (2006).
399. See supra notes 21-30 and accompanying text;
400. see also Gellhorn & Verkuil, supra note 16, at 996 (arguing that the availability of Chevron deference encourages agencies to make "broad claims of jurisdiction into areas long thought to be outside their jurisdiction").
401. Compare FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (FDA asserts authority to regulate tobacco products under the FDCA)
402. with Massachusetts v. EPA, 549 U. S. 497, 504 (2007) (EPA asserts that it lacks statutory authority to regulate greenhouse gases under the Clean Air Act).
403. See Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1284 (D. C. Cir. 1994).
404. See P. R. Mar. Shipping Auth. v. Valley Freight Sys., Inc., 856 F.2d 546, 548-49 (3d Cir. 1988).
405. Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 658, 671 (D. C. Cir. 1994) (en banc).
406. Am. Bus Ass'n v. Slater, 231 F.3d 1, 3 (D. C. Cir. 2000).
407. Cass Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 446 (1989).
408. Sunstein, Law and Administration, supra note 31, at 2097;
409. see also NORMAN J. SINGER, 3 Statutes and Statutory Construction § 65.2 (2001) ("[T]he general rule applied to statutes granting powers to [agencies] is that only those powers are granted which are conferred either expressly or by necessary implication. ").
410. See Addison v. Holly Hill Fruit Prods., Inc., 322 U. S. 607, 616 (1944) ("[Determination of the extent of authority given to a delegated agency by Congress is not left for the decision of him in whom authority is vested.") ;
411. see also Armstrong, supra note 21.
412. Sunstein, Law and Administration, supra note 31, at 2099;
413. see also Gellhom & Verkuil, supra note 16, at 994 ("When agency self-interest is directly implicated, such as when it must decide whether an area previously unregulated by the agency should now come within its jurisdiction, the justifications for deference fade-It is here that concern about agency aggrandizement is at its highest.") ;
414. Merrill & Hickman, supra note 12, at 867 ("If Congress describes the agency's mandate in a way that contains gaps or ambiguities (which is inevitable), and Chevron requires courts to defer to any reasonable interpretation of these gaps and ambiguities, then Chevron seems to offer an opening for agency aggrandizement (or abrogation), without any effective judicial check.").
415. See, e.g., Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381-82 (1988) (Scalia, J., concurring in the judgment) (presuming, without citing evidence, that "Congress would naturally expect that the agency would be responsible, within broad limits, for resolving ambiguities in its statutory authority or jurisdiction") ;
416. id. at 387 (Brennan, J., dissenting) (arguing, without citing evidence, that "we cannot presume that Congress implicitly intended an agency to fill 'gaps' in a statute confining the agency's jurisdiction") ;
417. cf. Sunstein, Step Zero, supra note 13, at 235 (acknowledging that "the claim about what 'Congress would naturally expect' is a fiction").
418. Cf. Webster v. Doe, 486 U. S. 592, 607 (1988) (Scalia, J., dissenting).
419. That may be one reason why Professor Sunstein appears to have overcome his previous skepticism of entrusting jurisdictional questions to agencies. In his most recent discussion of the issue, Professor Sunstein argues that "any exemption of jurisdictional questions" from the Chevron framework "is vulnerable on two grounds."
420. Sunstein, Step Zero, supra note 13, at 235. First, echoing Justice Scalia, "the line between jurisdictional and nonjurisdictional questions is far from clear."
421. Id. Second, agency assertions of jurisdiction typically are due to the influence of "democratic forces" or the agency's "own specialized competence"-which of course are two classic rationales for Chevron deference. Id.
422. See Am. Bus Ass'n v. Slater, 231 F.3d 1, 9 (D. C. Cir. 2000) (Sentelle, J., concurring) ("We would not, of course, be obliged to rubber-stamp an agency's interpretation of those, or any other, statutory silences; any such interpretation would still have to satisfy the reasonableness test of Chevron step two.").
423. 21 U. S. C. § 321 (h) (2006).
424. See, e.g., R. R. Comm'n of Tex. v. Pullman Co., 312 U. S. 496, 500-01 (1941).
425. See, e.g., Burford v. Sun Oil Co., 319 U. S. 315, 332-34 (1943).
426. See Nixon v. United States, 506 U. S. 224, 229-34 (1993).
427. Powell v. McCormack, 395 U. S. 486, 506-12 (1969). The political question doctrine does not, of course, insulate a decision by Congress to refuse to seat a member.
428. See id. at 548-49.
429. See Molot, supra note 231, at 1304 ("[I]n an important respect, the institutional setting within which judges operate renders them less likely than political actors to be motivated predominantly by a desire merely to implement their own political ideology.").
430. This rationale may pose problems for Professor Sunstein in particular, who has taken a rather broad view of standing and justiciability requirements.
431. See, e.g., Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries", and Article III, 91 MICH. L. Rev. 163, 180 (1992).
432. The Reconstruction Congress's efforts to remove President Andrew Johnson from office are an obvious counterexample.
433. For instance, Congress refused to seat Representative Adam Clayton Powell-as distinct from expelling him-after he was accused of corruption. President Nixon was threatened with impeachment after an independent counsel uncovered evidence of his complicity in the Watergate breakin. Federal judge Alcee Hastings was impeached and removed after he was indicted for (and later acquitted of) accepting a bribe and committing perjury. And President Clinton was impeached after an independent counsel uncovered evidence of alleged perjury and obstruction of justice.
434. See James Q. Wilson, The Politics of Regulation 370 (1980).
435. See 47 U. S. C. § 303 (2006) ;
436. see also Nafl Broad. Co. v. United States, 319 U. S. 190, 216 (1943).
437. See 42 U. S. C. § 7409 (b) (1) (2006) (requiring the EPA to set national ambient air quality standards at a level "requisite to protect the public health" with "an adequate margin of safety").
438. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
439. 487 U. S. 354, 377-81 (1988).
440. Id. at 381 (Scalia, J., concurring in the judgment).
441. Id.
442. see also, e.g., Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 676-77 (D. C. Cir. 1994) (en banc) (Williams, J., dissenting) ("Indeed, any issue may readily be characterized as jurisdictional merely by manipulating the level of generality at which it is framed.") ;
443. Cope, supra note 16, at 1340-42;
444. Crawford, supra note 16, at 968-69.
445. Professor Vermeule similarly argues that the entire "step zero" project-including, by implication, this Article's efforts to cordon off jurisdictional questions from Chevron's domain-is fatally flawed. According to Professor Vermeule, "step zero" replaces Chevron's simple rule-like approach with a standards-based, "fine-grained jurisprudence of deference." Vermeule, supra note 202, at 347. By moving from a rule to a standard, "step zero" analysis makes it more costly for courts to reach decisions, increases uncertainty for litigants, forces judges and lawyers to devote more resources to litigating over standards of review, and externalizes the costs of decisionmaking from the Supreme Court to lower courts.
446. See id. at 356-58. We do not deny that our no-deference rule poses at least some risk of greater decision costs (though, as the rest of Part V. A explains, these costs are likely to be smaller than critics fear). More importantly, we have a fundamentally different understanding of what Chevron is trying to accomplish. Professor Vermeule and other "step zero" critics (including Justice Scalia) see Chevron primarily as a tool for minimizing judicial discretion and promoting efficiency. They therefore are more willing to tolerate the risk of agency aggrandizement.
447. We see Chevron (as clarified in Mead) as a partial solution to the problem of excessive agency discretion. We therefore are more willing to tolerate the risk of decisional inefficiencies (though we share the concern about possible judicial overreach). To put it somewhat crudely, we worry more about agency aggrandizement than we do about judges and lawyers working harder.
448. See, e.g.. Am. Bar Ass'n v. FTC, 430 F.3d 457, 468 (D. C. Cir. 2005) ("The Commission apparently assumed-without reasoning-that it could extend its regulatory authority over attorneys engaged in the practice of law with no other basis than the observation that the Act did not provide for an exemption. ") ;
449. *22 ("The plain language indicates that Congress did not explicitly forbid the Secretary from including a compensation mechanism in the [bus] accessibility regulations.").
450. Miss. Power, 487 U. S. at 381 (Scalia, J., concurring in the judgment).
451. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159-60 (2000).
452. See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U. S. 967, 989-99 (2005).
453. See supra Part III.
454. Mississippi Power, 487 U. S. at 378 (Scalia, J., concurring in the judgment).
455. Id.
456. See Deborah Jones Merritt, Commerce/, 94 MICH. L. REV. 674, 739-50 (1995) (applying concept of "fuzzy logic" to question of what constitutes "commerce").
457. Indeed, this is part of the reason that the pre-New Deal Court's Commerce Clause decisions are so routinely criticized for their inconsistencies.
458. See id. at 684-85.
459. Id. at 742.
460. Noah, supra note 16, at 1524.
461. See Chi. Mercantile Exch. v. SEC, 883 F.2d 537, 539 (7th Cir. 1989) (holding that "index participations" were a type of futures contract that therefore were subject to the CFTC's jurisdiction and not the SEC's).
462. See, e.g., Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 236-37 (D. C. Cir. 1992).
463. For instance, the Supreme Court in NLRB v. Wyman-Gordon Co., 394 U. S. 759, 763, 769 (1969)
464. disagreed on whether the Board had engaged in rulemaking or adjudication when, in Excelsior Underwear, Inc., 156 N. L. R. B. 1236 (1966)
465. it required an employer to provide a union with the names and addresses of its employees. Compare Wyman-Gordon, 394 U. S. at 765 (plurality opinion) (the Excelsior Underwear order was a rule)
466. and id. at 777 (Douglas, J., dissenting) (same), and id. at 780 (Harlan, J., dissenting) (same), with id. at 770 (Black, J., concurring in the judgment) (the Excelsior Underwear order was an adjudication).
467. See, e.g., Webster v. Doe, 486 U. S. 592, 597 (1988).
468. Eskridge & Baer, supra note 154, at 1130.
469. Id.
470. Id.
471. Id.
472. Id.
473. Vermeule, supra note 202, at 356-57.
474. See Gellhom & Verkuil, supra note 16, at 1009 (arguing that Chevron should not apply to agency assertions of jurisdiction that are "likely to have a major impact on the regulatory program and those being regulated").
475. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125-30 (2000).
476. See Massachusetts v. EPA, 549 U. S. 497, 528-30 (2007).
477. See United States v. Mead Corp., 533 U. S. 218, 224-26 (2001). There are some obvious counterfactuals here. Chevron itself involved an agency decision (endorsing the "bubble approach" under the Clean Air Act) that affected an entire industry (coal-fired power plants).
478. See Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842 (1984). Yet we would not suggest that the EPA's action was on that account jurisdictional and subject to our no-deference rule. Rather, the size of the affected class is only one of several factors that, taken together, help draw the line between jurisdictional and nonjurisdictional actions.
479. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29, 44 (1983).
480. See Natural Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 687 (D. D. C. 1975).
481. See Gellhorn & Verkuil, supra note 16, at 1012 (suggesting that Chevron deference may not be appropriate "if the agency has not previously regulated the product or service, or asserted the power to do so").
482. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44, 354, 44, 355 (proposed July 30, 2008).
483. In Massachusetts v. EPA, the agency denied that it had jurisdiction to regulate greenhouse gases in part because acknowledging that greenhouse gases contributed to climate change could have led the EPA to take actions that conflicted with agency leadership's preference for market-based solutions to environmental problems. 549 U. S. 497, 533-34 (2007).
484. For instance, FTC Chairman Michael Pertschuk claimed authority to regulate television advertisements directed at children in part because: "I had come as the candidate of the consumer groups. And I had to do something early to establish my good faith with them, because they were easily dissatisfied, and I felt it was important to maintain their trust." JOHN F. KENNEDY SCH. OF Gov't, Mike Pertschuk and the Federal Trade Commission 13 (1981).
485. See, e.g., Crawford, supra note 16, at 958 ("A rule of deference both recognizes the problems in distinguishing jurisdictional and nonjurisdictional interpretations and best upholds the policies behind Chevron. ").
486. Scalia, supra note 171, at 515.
487. Of course it is an overstatement to suggest, as some deference advocates do, that courts can never engage in policy determinations. To the contrary, courts can and must make policy determinations with an eye toward potential policy consequences. Indeed, as Scalia notes, "Policy evaluation is... part of the traditional judicial tool-kit that is used in applying the first step of Chevron......"
488. Id.
489. Id. at 516 ("An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency.").
490. Crawford, supra note 16, at 968.
491. Cf. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (rejecting the notion "that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance").
492. See Massachusetts v. EPA, 549 U. S. 497, 534-35 (2007) ;
493. Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 176 (4th Cir. 1998).
494. Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why It Matters, 59 ADMIN. L. REV. 673, 712 (2007).
495. Id. at 713.
496. 5 U. S. C. § 706 (2) (C) (2006) ;
497. see also Foote, supra note 352, at 713.
498. Eskridge & Baer, supra note 154, at 1085 (internal quotations omitted).